Key Takeaway
NY court rules that dismissal for failure to appear at conference should be without prejudice, not with prejudice, as it's not a determination on the merits.
Farrell Forwarding Co., Inc. v Alison Transp., Inc., 2014 NY Slip Op 05507 (2d Dept. 2014)
“After the plaintiff failed to appear at a court-ordered conference, the defendant moved for leave to enter a default judgment and to dismiss the complaint pursuant to 22 NYCRR 202.27(b). In opposition to the motion, the plaintiff failed to establish either a reasonable excuse for the default or a potentially meritorious cause of action. Accordingly, the motion for leave to enter a default judgment and to dismiss the complaint was properly granted (see Aydiner v Grosfillex, Inc., 111 AD3d 589).
However, the judgment should have dismissed the complaint without prejudice, since dismissal of an action for a default pursuant to 22 NYCRR 202.27 does not constitute a determination on the merits (see Franchise Acquisitions Group Corp. v Jefferson Val. Mall Ltd. Partnership, 73 AD3d 1123; Kalisch v Maple Trade Fin. Corp., 35 AD3d 291).”
This is interesting because the trial court is now without power to dismiss a case with prejudice when a plaintiff (counterclaiming defendant) fails to appear at trial. Assuming the SOL is 6 years or you are in a fast moving upstate court with a 3 year SOL on a tort case, a dismissal for non-appearance may not be all too bad.
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