Opinion
December 1, 1970
Order of the Supreme Court, New York County, entered on March 31, 1970, denying leave to renew motion to dismiss complaint as to plaintiff, Ernest Ralph Mingione, unanimously reversed, on the law and on the facts and in the exercise of discretion, without costs and without disbursements. Permission to renew is granted and, upon renewal, the order of said court entered on October 29, 1969, is modified to grant appellant's motion as to plaintiff Ernest Ralph Mingione, and, as to said plaintiff the action is dismissed as against defendant Childcraft, and otherwise affirmed. An action by these plaintiffs against these defendants, commenced in 1962 alleging the same causes of action, was dismissed "on the merits" as against appellant by summary judgment entered by default in 1964. Appellant moved to dismiss the present action commenced in 1969 on the ground of res judicata and, as to the father's cause of action, on the additional ground of Statute of Limitations. The infant plaintiff cross-moved to modify the 1964 judgment by deleting the words "on the merits". By order entered October 29, 1969 Special Term dismissed the father's cause of action as time-barred and denied the motion as to the infant, stating "justice requires that the motion be * * * denied as to the infant plaintiff". Without specifically so stating, it thereby modified the prior judgment by deleting "on the merits". Notice of entry of the order was served November 14, 1969 and appellant's motion for leave to renew by notice of motion and affidavit dated the same day was denied. Leave to renew should have been granted. Whether considered based on excusable default, there being no evidence that copies of the 1964 order and judgment were served (CPLR 5015, subd. [a] par. 1) or addressed to the inherent power of the court to modify its judgment in the interest of justice (5 Weinstein-Korn-Miller, N.Y. Civ. Prac., par. 5015.12), the circumstances presented did not warrant granting the infant's motion to modify the earlier judgment on either ground. Plaintiff father, himself a lawyer, made no inquiry about the progress of the first action until, after an unsuccessful search for his attorney, he retained his present attorney presumably shortly before the commencement of the present action seven years later. Further, there was no factual showing that the action has merit. ( Barnett Co. v. St. Paul Fire Mar. Ins. Co., 7 A.D.2d 897; Titus v. Halstead, 209 App. Div. 66; Fitzgerald Mfg. Co. v. Alexander, 200 App. Div. 164, app. dsmd. 234 N.Y. 608.)
Concur — McGivern, J.P., Markewich, McNally and Macken, JJ.