You are here: / / AN ORDER DISMISSING AN ACTION DOES NOT CONCLUDE THE ACTION WHICH CAN ONLY...
,

AN ORDER DISMISSING AN ACTION DOES NOT CONCLUDE THE ACTION WHICH CAN ONLY BE ACCOMPLISHED BY FINAL JUDGMENT ENTERED BY THE CLERK; HERE, ALTHOUGH THE ACTION HAD BEEN DISMISSED BY AN ORDER, ABSENT A JUDGMENT THE ACTION REMAINED VIABLE AND THE COURT SHOULD HAVE CONSIDERED PLAINTIFF’S POST-DISMISSAL MOTION ON THE MERITS (SECOND DEPT).

The Second Department, reversing Supreme Court, in a full-fledged opinion by Justice Dillon, determined: (1) an order dismissing an action does not terminate the action which can only be accomplished by a judgment; and (2) here, although the action had been dismissed, the action was still viable in the absence of a judgment and plaintiff’s motion for the appointment of a receiver should have been considered on the merits:

… [A]n order of dismissal is not the same as a judgment under CPLR 5011. CPLR 5011 is routinely utilized by practitioners and courts without controversy, as its mechanics are well-understood and not particularly complicated. A judgment is a paper that reflects the resolution of an action or proceeding … . A judgment may be either interlocutory or final. It “shall refer to, and state the result of, the verdict or decision, or recite the default upon which it is based” (CPLR 5011 …). A judgment is entered by the clerk at the conclusion of an action or proceeding (see CPLR 5016[a]). An action is not actually concluded until a final judgment is entered … . HSBC Bank USA, N.A. v Rubin, 2022 NY Slip Op 05682, Second Dept 10-12-22

Practice Point: An order dismissing an action does not conclude the action. Only a final judgment entered by the clerk terminates an action. Here there was an order dismissing the action but no judgment had been entered. Therefore, plaintiff’s post-dismissal motion should have been considered on the merits.

 

You might also like
PLAINTIFF’S EXPERT SHOULD HAVE BEEN ALLOWED TO TESTIFY IN THIS SLIP AND FALL CASE; NEW TRIAL ORDERED (SECOND DEPT).
Anders Brief Rejected
POSSIBLE CONFUSION ABOUT WHICH MICHAEL YACUBICH AT THE SAME ADDRESS WAS THE “MIKE YACUBICH” SEEKING TO BE PLACED ON THE BALLOT FOR ASSEMBLY WAS NOT A PROPER GROUND FOR INVALIDATING THE DESIGNATING PETITION (SECOND DEPT).
DEFENDANT, AS AN OUT-OF-POSSESSION LANDLORD, WAS NOT LIABLE FOR AN ALLEGED DANGEROUS CONDITION ON THE PROPERTY; PLAINTIFF’S REFERENCES TO UNPLEADED CAUSES OF ACTION (LABOR LAW 240(1) AND LABOR LAW 241(6)) IN THE BILL OF PARTICULARS WERE UNSUPPORTED; THE COMPLAINT SHOULD HAVE BEEN DISMISSED (SECOND DEPT). ​
DEFINITION OF ‘PARENT’ IS THE SAME FOR PARENTAL ACCESS AND CUSTODY; JUDICIAL ESTOPPEL AND COLLATERAL ESTOPPEL DOCTRINES PRECLUDED SUPREME COURT’S FINDING THAT FATHER DID NOT HAVE STANDING IN THE CUSTODY MATTER (SECOND DEPT).
THE DOCUMENT LABELED A “SUPPLEMENTAL” BILL OF PARTICULARS WAS ACTUALLY AN “AMENDED” BILL OF PARTICULARS BECAUSE IT ADDED NEW INJURIES AFTER THE NOTE OF ISSUE WAS FILED; THE DEFENDANT’S MOTION TO STRIKE THE AMENDED BILL OF PARTICULARS SHOULD HAVE BEEN GRANTED (SECOND DEPT). ​
Suspended Judgment Should Not Have Been Granted in Termination-of-Parental-Rights Proceeding
DEPARTMENT STORE’S MOTION FOR SUMMARY JUDGMENT IN THIS ESCALATOR SLIP AND FALL CASE SHOULD HAVE BEEN GRANTED, NO ACTUAL OR CONSTRUCTIVE NOTICE OF CONDITION.

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2025 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

A QUESTION OF FACT WHETHER THE PARTIES AGREED TO ARBITRATE THE DISPUTE REQUIRES... THE JUDGE SHOULD HAVE GRANTED DEFENDANTS’ ATTORNEY’S REQUEST FOR...