On appeal, plaintiff would have this Court modify, first, the order and judgment to have it provide that the dismissal of the complaint, as abandoned, pursuant to CPLR 3215 (c), was without prejudice, and, second, to delete from the IAS Court's decision the language that "plaintiff landlord's claim against the deceased tenant's estate has no merit". Since the judgment is silent as to "prejudice", it is deemed to be not on the merits (CPLR 5013), and it is without prejudice...
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