Farrell Forwarding Co., Inc. v Alison Transp., Inc.

Farrell Forwarding Co., Inc. v Alison Transp., Inc. 2014 NY Slip Op 05507 Decided on July 30, 2014 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on July 30, 2014 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
THOMAS A. DICKERSON, J.P.
JOHN M. LEVENTHAL
JEFFREY A. COHEN
SYLVIA O. HINDS-RADIX, JJ.
2012-10269
(Index No. 3328/10)

[*1]Farrell Forwarding Company, Inc., appellant,

v

Alison Transport, Inc., respondent.

Bechtle & Murphy, Garden City, N.Y. (James Murphy of counsel), for appellant.

Moss & Kalish, PLLC, New York, N.Y. (James Schwartzman of counsel), for respondent.

DECISION & ORDER

In an action to recover damages, inter alia, for breach of contract, the plaintiff appeals from a judgment of the Supreme Court, Nassau County (Diamond, J.), entered June 27, 2012, which, upon an order of the same court entered February 29, 2012, granting the defendant's motion for leave to enter a default judgment and to dismiss the complaint for failure to appear pursuant to 22 NYCRR 202.27, is in favor of the defendant and against it dismissing the complaint with prejudice.

ORDERED that the judgment is modified, on the law, by deleting the provision thereof dismissing the complaint with prejudice, and substituting therefor a provision dismissing the complaint without prejudice; as so modified, the judgment is affirmed, without costs or disbursements.

After the plaintiff failed to appear at a court-ordered conference, the defendant moved for leave to enter a default judgment and to dismiss the complaint pursuant to 22 NYCRR 202.27(b). In opposition to the motion, the plaintiff failed to establish either a reasonable excuse for the default or a potentially meritorious cause of action. Accordingly, the motion for leave to enter a default judgment and to dismiss the complaint was properly granted (see Aydiner v Grosfillex, Inc., 111 AD3d 589).

However, the judgment should have dismissed the complaint without prejudice, since dismissal of an action for a default pursuant to 22 NYCRR 202.27 does not constitute a determination on the merits (see Franchise Acquisitions Group Corp. v Jefferson Val. Mall Ltd. Partnership, 73 AD3d 1123; Kalisch v Maple Trade Fin. Corp., 35 AD3d 291).

DICKERSON, J.P., LEVENTHAL, COHEN and HINDS-RADIX, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court