Capps v. Johnson

—Order unanimously reversed on the law without costs, motion reinstated and matter remitted to Monroe County Family Court for further proceedings in accordance with the following Memorandum: Family Court erred in dismissing respondent’s motion pursuant to CPLR 5015 to vacate an arrears judgment on the ground that it was barred by res judicata. The dismissal of a proceeding for failure to prosecute is not a dismissal on the merits and thus does not bar a second proceeding “[ujnless the order specifies otherwise” (CPLR 3216 [a]; see, Maitland v Trojan Elec. & 976 Mach. Co., 65 NY2d 614, 615-616; Spring Sheet Metal & Roofing Co. v Koppers Indus., 273 AD2d 789). Here, the court’s dismissal did not specify “on the merits.” Thus, we reverse the order, reinstate the motion and remit the matter to Monroe County Family Court to determine the motion. (Appeal from Order of Monroe County Family Court, Taddeo, J. — Vacate Judgment.) Present — Green, J. P., Hayes, Scudder, Burns and Lawton, JJ.