Berman v. Szpilzinger

200 A.D.2d 367, 606 N.Y.S.2d 203

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 6, 1994
• Status: Published

Opinion

—Order, Supreme Court, New York County (Myriam Altman, J.) entered on or about November 19, 1992, which granted defendant’s motion to dismiss the complaint, unanimously affirmed, with costs.

The action is barred by the six-year Statute of Limitations governing contract actions. The six-month extension under CPLR 205 (a) was not available to plaintiff since, as explained by the IAS Court, the first action, which raised identical claims, was dismissed because plaintiffs failure to comply with disclosure orders evinced an unwillingness to prosecute the action in timely fashion. Thus, although the first order did not say as much in so many words, the IAS Court did impliedly dismiss the first action with prejudice, as indeed the court itself made clear in dismissing the second action (cf., Barrett v Kasco Constr. Co., 56 NY2d 830; Colon v New York City Health & Hosps. Corp., 166 AD2d 291). Concur — Murphy, P. J., Kupferman, Asch and Nardelli, JJ.