Marine Midland Bank-Western v. Movable Homes, Inc.

Order insofar as appealed from unanimously reversed, with costs, cross motion granted and cross claim dismissed. Memorandum: In August, 1973, Movable Homes, Inc., served a complaint upon the City of North Tonawanda which this court dismissed for failure to state a cause of action (Movable Homes v City of North Tonawanda, 56 AD2d 718). The cross claim asserted in the present action by Movable Homes, Inc., against the city incorporates by reference the earlier dismissed complaint and the claim asserted thereunder. Since our order dismissing the complaint in the earlier action did not specify that such dismissal was on the merits, technically the cross claim here cannot be dismissed on the ground of res judicata (CPLR 5013; 5 Weinstein-Korn-Miller, NY Civ Prac, pars 5011.11, 5013.02). Nevertheless, our prior determination, whether or not on the merits, is a bar to the cross claim, inasmuch as the defects or omissions adjudged to be present in the prior action were neither corrected nor supplied by the cross claim in the proceeding here (Linton v Perry Knitting Co., 295 NY 14, 17; Van Minos v Merkley, 48 AD2d 281; Binkowski v General Elec. Co., 25 AD2d 577, mot for lv to app den 17 NY2d 423; Flynn v Sinclair Oil Corp., 20 AD2d 636, affd 14 NY2d 853). Accordingly, that part of Special Term’s order denying the city’s cross motion to dismiss the cross claim should be reversed and the motion granted. (Appeal from order of Niagara Supreme Court—dismiss cross claim.) Present—Marsh, P. J., Moule, Simons, Denman and Witmer, JJ.