There are dismissals on the merits and there are dismissals which are not on the merits.  What difference, one might ask?  The major difference is whether the case may be brought again within 6 months under CPLR 205.

The next question is whether a dismissal under CPLR 3211, a common event, is on the merits or not on the merits.  Not only does it depend, but it depends on how the parties chart their own litigation course.  Meredith v Siben & Siben, LLP  2015 NY Slip Op 06120  Decided on July 15, 2015  Appellate Division, Second Department describes how the parties wandered from a mere motion in lieu of an answer into a motion for summary judgment.

“Initially, contrary to the plaintiff’s contention, the defendant did not waive its statute of limitations defense, asserted in its answer, by failing to make a pre-answer motion to dismiss (see Rich v Lefkowitz, 56 NY2d 276). Rather, a statute of limitations defense may be asserted after joinder of issue in a motion for summary judgment pursuant to CPLR 3212 (see Rich v Lefkowitz, 56 NY2d at 282). Although the defendant’s motion was made pursuant to 3211(a)(5), the parties clearly charted a summary judgment course by submitting extensive documentary evidence and factual affidavits laying bare their proof (see One Monroe, LLC v City of New York, 89 AD3d 812, 813; Tendler v Bais Knesses of New Hempstead, Inc., 52 AD3d 500, 502; Harris v Hallberg, 36 AD3d 857, 858-859; O’Dette v Guzzardi, 204 AD2d 291, 292; see also Schultz v Estate of Sloan, 20 AD3d 520; Kavoukian v Kaletta, 294 AD2d 646, 646-647). Thus, the defendant’s motion is properly treated as a motion for summary judgment dismissing the complaint as time-barred.”