Failure to appear may not result in dismissal with prejudice

Farrell Forwarding Co., Inc. v Alison Transp., Inc., 2014 NY Slip Op 05507 (2d Dept. 2014)

“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).”

This is interesting because the trial court is now without power to dismiss a case with prejudice when a plaintiff (counterclaiming defendant) fails to appear at trial.  Assuming the SOL is 6 years or you are in a fast moving upstate court with a 3 year SOL on a tort case, a dismissal for non-appearance may not be all too bad.

2 Responses to “Failure to appear may not result in dismissal with prejudice”

  • SunTzu:

    Further, the CPLR 205 SOL grace period probably applies to give the plaintiff another 6 months to file the action assuming the SOL period is past. This assumes that the exception to 205 does not apply regarding dismissals “for neglect to prosecute the action,” which it probably doesn’t.

    Oh, I’m back.

  • Wang Chung:

    This is ahhh Wang Chung.

    Sun Tzu you are onlwee man who have sum intelligwenc herwe.

    This Blog so boring now. Not even Captwain Amerikwa can save it.

    Chinwa will rise and controwl earth and then give it back because it not worthy of Chinwa.

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