Opinion
October 30, 1981
Appeal from the Monroe Supreme Court, White, J.
Present — Dillon, P.J., Simons, Callahan, Denman and Moule, JJ.
Order unanimously modified and, as modified, affirmed, without costs, in accordance with the following memorandum: Conceding that on defendant's motion under CPLR 3215 (subd [c]) Special Term properly dismissed the complaint as abandoned, plaintiff appeals only from so much of the order as directed that the dismissal be on the merits and with prejudice. The order must be modified to delete the final ordering paragraph dismissing the complaint on the merits and with prejudice. Unlike the provisions of CPLR 3216 (subd [a]), CPLR 3215 (subd [c]) does not authorize dismissal of a complaint on the merits (see 4 Weinstein-Korn-Miller, N.Y. Civ Prac, par 3215.15; compare Freeman's Beverages v. National Cash Register Co., 50 A.D.2d 1075 [holding that a dismissal pursuant to CPLR 3404 is not a dismissal on the merits]). Plaintiff's claim has at least apparent merit and since the Statute of Limitations had not run before plaintiff instituted a new action, there is no justification for denying plaintiff its day in court (Siegel, Supplementary Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3042:16, 1980-1981 Pocket Part, pp 115-116.)