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175 EAST 74TH CORP. v. HARTFORD ACCIDENT & INDEM. CO.

72 A.D.2d 521 (1979)

175 East 74th Corporation, Appellant, v. Hartford Accident and Indemnity Company, Respondent

Appellate Division of the Supreme Court of the State of New York, First Department.

October 23, 1979

The judgment in the earlier action between the parties entered on default on a motion to dismiss the complaint for failure to state a cause of action, being on the pleadings only and not stated to be on the merits, is not a judgment on the merits (CPLR 5013), and therefore does not bar another action brought for the same cause, at least where the second complaint is materially different from the first. (5 Weinstein-Korn-Miller, NY Civ Prac, pars 5011.11, 5013.02; Allston...

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