STRANGE v. MONTEFIORE HOSPITAL AND MEDICAL CENTER

MEMORANDUM.

The order of the Appellate Division should be affirmed, with costs.

As we wrote in Barrett v Kasco Constr. Co. ( 56 N.Y.2d 830, 831), procedurally indistinguishable from the case now before us, "although the prior judgment of Supreme Court does not specifically recite that it is `on the merits', that judgment should be given res judicata effect in order to prevent the plaintiff from circumventing the preclusion decree (cf. Palmer v Fox, 28 A.D.2d 968, affd 22 N.Y.2d 667)." CPLR 5013 does not require that the prior judgment contain the precise words "on the merits" in order to be given res judicata effect; it suffices that it appears from the judgment that the dismissal was on the merits. Indeed, one would not except to find any such explicit recital in a judgment of dismissal based on a grant of summary judgment for insufficiency of proof, as occurred here.

Chief Judge COOKE and Judges JASEN, JONES, WACHTLER, MEYER and SIMONS concur; Judge FUCHSBERG taking no part.

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 N.Y.CRR 500.2 [g]), order affirmed, with costs, in a memorandum.