LYDDY v. AYLING


111 Misc.2d 449 (1981)

Maria L. Lyddy, as Executrix of Maria Schuch, Deceased, Petitioner, v. Susan Ayling, Respondent.

Civil Court of the City of New York, Special Term, New York County.

November 4, 1981


Attorney(s) appearing for the Case

Margaret D. Baisley for respondent. Roger W. Kohn for petitioner.


JAY STUART DANKBERG, J.

Is a dismissal "on the merits" when it results for failure of proof at the conclusion of a prima facie case? Are there circumstances — for example, requirements of purely technical proof (normally pro forma in nature) — when a court should give a "second bite at the apple" to the party commencing the litigation?

These vexing questions are raised in this nonpayment summary proceeding by respondent's...

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