Koch v. Blue Cross & Blue Shield of Greater New York ( 1985 )

— Order, Supreme Court, New York (Bruce Wright, J.), entered on or about February 16, 1984, which dismissed the petition against respondent Blue Cross and Blue Shield of Greater New York with prejudice, is unanimously modified, on the law and the facts, to the extent of deleting the words “with prejudice” and replacing them with the words “without prejudice”, and otherwise affirmed, without costs.

Petitioner seeks a permanent injunction against respondent Blue Cross and Blue Shield of Greater New York, in order to prevent respondent from barring him, and other similarly situated males, from participation in the annual “Women on the Move” road races sponsored by it. Respondent moved to dismiss. Special Term granted the motion with prejudice. We disagree.

Special Term correctly decided that the respondent was an improper party to this proceeding. However, we find that Special Term erred when, without converting the proceeding to a plenary action (CPLR103), it decided this proceeding on the merits, and dismissed it with prejudice. Based upon the facts before us, we dismiss the proceeding without prejudice, since petitioner is entitled to commence a plenary action. Concur — Kupferman, J. P., Ross, Carro and Bloom, JJ.