Summary
analyzing language in context of summary judgment
Summary of this case from Howard Carr Cos. v. Cumberland Farms, Inc.Opinion
Decided May 10, 1983
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, IRWIN SILBOWITZ, J.
Gregory Peck and Martin S. Rothman for appellant.
Alexander J. Wulwick for respondent.
MEMORANDUM.
The order of the Appellate Division should be affirmed, with costs.
As we wrote in Barrett v Kasco Constr. Co. ( 56 N.Y.2d 830, 831), procedurally indistinguishable from the case now before us, "although the prior judgment of Supreme Court does not specifically recite that it is 'on the merits', that judgment should be given res judicata effect in order to prevent the plaintiff from circumventing the preclusion decree (cf. Palmer v Fox, 28 A.D.2d 968, affd 22 N.Y.2d 667)." CPLR 5013 does not require that the prior judgment contain the precise words "on the merits" in order to be given res judicata effect; it suffices that it appears from the judgment that the dismissal was on the merits. Indeed, one would not except to find any such explicit recital in a judgment of dismissal based on a grant of summary judgment for insufficiency of proof, as occurred here.
Chief Judge COOKE and Judges JASEN, JONES, WACHTLER, MEYER and SIMONS concur; Judge FUCHSBERG taking no part.
On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 N.Y.CRR 500.2 [g]), order affirmed, with costs, in a memorandum.