We do not reach the merits because in our view the third-party plaintiffs are barred from proceeding in this 1965 accident claim as a result of the dismissal of the original third-party complaint pursuant to CPLR 3211 (subd [a], pars 1, 7).
It was alleged in that complaint that New Hampshire Insurance Company issued a policy of insurance which provided coverage for any liability of third-party plaintiffs arising *288out of the accident involving their son. The motion was supported by the policy itself and facts conceded pursuant to an unanswered notice to admit.
The court necessarily reviewed precisely the same issue which confronts us here, i.e., did the policy provide coverage to third-party plaintiffs, because the question of coverage had to be determined at that time on the basis of the policy itself (cf. Greeff v Equitable Life Assur. Soc., 160 NY 19, 29; Red Robin Stores v Rose, 274 App Div 462, 465). It ruled against the third-party plaintiffs.
The third-party plaintiffs offered no opposition to the motion, did not request leave to replead in the event of an adverse determination (see CPLR 3211, subd [e]) and did not appeal the dismissal.
The insertion of additional paragraphs in this second third-party complaint to allege coverage under the substitute automobile provision in conclusory fashion adds nothing to the original complaint and does not state a different cause of action. The action was, therefore, barred by res judicata (Flynn v Sinclair Oil Corp., 20 AD2d 636, affd 14 NY2d 853).
Furthermore, this motion to dismiss should be granted because of the third-party plaintiffs’ failure to request leave to replead in affidavit form at the time of the motion addressed to their first complaint (CPLR 3211, subd [e]; see Cushman & Wakefield v John David, Inc., 25 AD2d 133). The drafters of the CPLR wisely included this requirement among the practice provisions to prevent serial pleadings upon meritless claims. If a pleader has a valid cause of action, although not properly stated or pleaded, it is the purpose of the statute to permit him to litigate it, but the burden rests upon the pleader to demonstrate the fact of merit upon the motion to dismiss and obtain the court’s permission to replead. If subdivision [e] is to have any meaning, the added allegations in the second complaint should have been presented to the court by third-party plaintiffs at the time of the original motion for its consideration together with an application to replead (see Souveran Fabrics Corp. v Virginia Fibre Corp., 37 AD2d 925; Chartered Bank v American Trust Co., 48 Misc 2d 314, affd 26 AD2d 623; cf. Lee v Wiegand, 28 AD2d 560).
The third-party plaintiffs having failed to do so, their third-party complaint should be dismissed.
Cardamone and Del Vecchio, JJ., concur with Goldman, *289J.; Moule, J. P., and Simons, J., dissent and vote to reverse the order and grant the motion to dismiss third-party complaint, in an opinion by Simons, J.
Order affirmed with costs.