Collins v. Bertram Yacht Corp.

| NY | Oct 4, 1977

Memorandum. Order affirmed. The grant of summary judgment, " 'the procedural equivalent of a trial’ ” (Capelin Assoc. v Globe Mfg. Co., 34 NY2d 338, 341; Falk v Goodman, 7 NY2d 87, 91), results in a final judgment on the merits, which bars another action between the same parties based upon the same cause of action (Dye v Lincoln First Bank of Rochester, 38 NY2d 769, 771; 6 Carmody-Wait 2d, NY Prac, § 39:39, p 492). On this record, we cannot say that the Appellate Division’s denial of the plaintiffs application to vacate the judgment entered after plaintiffs default on the summary judgment motion constituted an abuse of discretion (see Hitchcock v Peaslee, 145 NY 547; Williams v Montgomery, 60 NY 648; Cohen and Karger, Powers of the New York Court of Appeals, § 151, p 596).

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur.

Order affirmed, with costs, in a memorandum.