Lyddy v. Ayling

OPINION OF THE COURT

Jay Stuart Dankberg, J.

Is a dismissal “on the merits” when it results for failure of proof at the conclusion of a prima facie case? Are there circumstances — for example, requirements of purely technical proof (normally pro forma in nature) — when a court should give a “second bite at the apple” to the party commencing the litigation?

These vexing questions are raised in this nonpayment summary proceeding by respondent’s motion for an order dismissing the petition pursuant to CPLR 3211 (subd [a], par 5) on the ground of res judicata and for an order granting injunctive…