GREEN TREE SERVICING LLC v. BARNES (2023)

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Sherry Y. Barnes appeals from an order of the Supreme Court, Queens County (Salvatore J. Modica, J.), entered September 9, 2019.  The order, insofar as appealed from, in effect, denied that branch of that defendant's motion which was to dismiss the complaint insofar as asserted against her with prejudice.

ORDERED that the order is affirmed insofar as appealed from, with costs.

In October 2014, the plaintiff commenced this action against, among others, the defendant Sherry Y. Barnes (hereinafter the defendant) to foreclose a mortgage encumbering certain real property located in Queens.  In December 2017, a judgment of foreclosure and sale (hereinafter the judgment) was entered.  Thereafter, in March 2019, the defendant moved, in effect, to vacate the judgment insofar as asserted against her, to restore the action to the calendar, and to dismiss the complaint insofar as asserted against her with prejudice.  In an order entered September 9, 2019, the Supreme Court vacated the judgment insofar as asserted against the defendant and directed dismissal of the complaint insofar as asserted against her on the ground of lack of personal jurisdiction, finding that the purported service on the defendant was not valid.  However, the court, in effect, denied that branch of the defendant's motion which was to dismiss the complaint insofar as asserted her with prejudice.  The defendant appeals, contending that the court improvidently exercised its discretion by, in effect, directing dismissal of the complaint insofar as asserted against her without prejudice.

The defendant's contention is without merit.  Dismissals for failure to timely serve process are not on the merits and are without prejudice (see Cadet–Duval v. Gursim Holding, Inc., 147 A.D.3d 718, 720, 45 N.Y.S.3d 585).  Moreover, “[a] dismissal ‘with prejudice’ generally signifies that the court intended to dismiss the action ‘on the merits,’ that is, to bring the action to a final conclusion against the plaintiff” (Yonkers Contr. Co., Inc. v. Port Auth. Trans–Hudson Corp., 93 N.Y.2d 375, 380, 690 N.Y.S.2d 512, 712 N.E.2d 678;  see Jespersen v. Li Sheng Liang, 68 A.D.3d 724, 725, 890 N.Y.S.2d 103).  Here, the dismissal was not on the merits (see Emigrant Bank v. Solimano, 209 A.D.3d 153, 162, 175 N.Y.S.3d 299), and the defendant failed to demonstrate the existence of extraordinary circumstances warranting dismissal with prejudice (see GMAC Mtge., LLC v. Bisceglie, 109 A.D.3d 874, 877, 973 N.Y.S.2d 225).  Since the dismissal of the complaint insofar as asserted against the defendant was based on lack of proper service and nothing more, a dismissal without prejudice was appropriate.

The parties’ remaining contentions either are without merit or need not be reached in light of our determination.

DUFFY, J.P., CONNOLLY, WOOTEN and TAYLOR, JJ., concur.