Opinion
February 23, 1971
Judgment of Supreme Court, New York County, entered June 19, 1970, after trial without a jury, in favor of defendant-respondent, dismissing the complaint at the close of plaintiff-appellant's evidence for failure of proof, unanimously modified, on the law and in the exercise of discretion and in the interest of justice, by the addition thereto of a provision that the dismissal of the complaint against defendant-respondent is without prejudice, and, as so modified, affirmed, without costs and without disbursements. No findings of fact were made by the Trial Justice, the court merely observing, in granting defendant's motion to dismiss at the end of plaintiff's evidence, that plaintiff had "failed to make out from the evidence a prima facie case". While neither that ruling nor the judgment states the dismissal to have been with prejudice, it does have that effect by statute, the contrary not having been stated (CPLR 5013). It is certain that the case was not made out prima facie. However, it is difficult, if not impossible, to ascertain from the record if the failure of proof resulted from its actual unavailability or from the court's continual trammeling of counsel in his effort to present his case. In the circumstances, plaintiff should have been afforded the opportunity by means of simple nonsuit to endeavor to procure and present the necessary evidence if available, and we hold that "it was error to make the dismissal with prejudice, thus precluding the prosecution of a new action." ( Giglio v. Haber, 19 A.D.2d 793.) Defendant's oral application to amend the title by striking therefrom other defendants is denied without prejudice. It is not properly before us, for we fail to find that any such application was made on the trial record.
Concur — Capozzoli, J.P., McGivern, Markewich, Nunez and McNally, JJ.