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Barry v. Riccio

New York Supreme Court, Appellate Term, Second Department


October 5, 2006

DAVID BARRY, RESPONDENT,
v.
RONALD C. RICCIO, APPELLANT.

Accepted for Miscellaneous Reports Publication

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, December 20, 2006

{**13 Misc 3d at 111} OPINION OF THE COURT

Memorandum

Final judgment affirmed without costs.

In February 2005 landlord commenced this nonpayment proceeding against tenant to recover, inter alia, $3,750 in unpaid rent for the period of August 20, 2004 through February 4, 2005. Following a trial, landlord was awarded possession and the principal sum of $3,600. The instant appeal by tenant ensued.

On appeal, tenant contends that, pursuant to CPLR 3217 (c), the final judgment should be vacated and the petition dismissed in its entirety. Tenant argues that, because landlord commenced two prior nonpayment proceedings against him in January 2005, seeking, inter alia, unpaid rents for the months of November 2004, December 2004 and January 2005, both of which proceedings landlord voluntarily discontinued, there was an adjudication on the merits as to the voluntarily discontinued second proceeding, which adjudication bars landlord from recovering rents in the instant proceeding.

Although it is uncontroverted that the prior proceedings were voluntarily discontinued, tenant failed to establish that the second proceeding was discontinued by notice, or by either a stipulation or an order providing that the discontinuance was with prejudice, so as to constitute a final adjudication on the merits against landlord (CPLR 3217 [c]; see Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3217:15, at 748). Moreover, it appears from the record that the prior proceedings were discontinued due to procedural and pleading defects, and not out of any intent to harass tenant. In these circumstances, a discontinuance by means of notice would not operate as an adjudication on the merits (see e.g. Decarvalhosa v Adler, 2001 NY Slip Op 40614[U] [App Term, 1st Dept 2001]). Accordingly, the final judgment is affirmed.

Rudolph, P. J., McCabe and Lippman, JJ., concur.

20061005

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