Paige v. Lucatorto

In an action to recover *582damages for nonpayment of a debt, the plaintiffs appeal from an order of the Supreme Court, Queens County (Price, J.), dated May 18, 2001, which, after an inquest, dismissed the action with prejudice.

Ordered that the order is modified by deleting therefrom the words “with prejudice” and substituting therefor the words “without prejudice”; as so modified, the order is affirmed, without costs or disbursements.

The appellants, as the executrixes of their father’s estate, sought to recover on a debt allegedly owed by the defendant to the decedent. Although the Supreme Court granted the appellants’ motion for leave to enter a judgment on the defendant’s default on the issue of liability, the appellants failed to submit any admissible evidence at the inquest to support the entry of a judgment for damages (see CPLR 3215 [f|; 22 NYCRR 202.46). Accordingly, the Supreme Court properly dismissed the action. The dismissal, however, should have been without prejudice. Prudenti, P.J., Florio, S. Miller, Friedmann and Adams, JJ., concur.