Order, Supreme Court, Bronx County (Irwin M. Silbowitz, J.), entered March 21, 1985, denying defendant’s motion for summary judgment dismissing the complaint on the ground of res judicata, affirmed, without costs or disbursements.
On this record, we agree that res judicata is not available as a defense to plaintiffs’ second action, alleging essentially the same cause of action for negligence interposed in the first complaint, which was dismissed for failure to prosecute pursuant to CPLR 3216 (a). The dismissal was not on the merits and, since the applicable Statute of Limitations was tolled during the infancy of the plaintiff, this did not constitute a bar to commencement of a new action for the same relief.
On June 15, 1979, Vereese Holley, then 10 years of age, was injured when he tripped and fell through a second-floor window at premises owned, maintained and controlled by defendant, at 1311 College Avenue in The Bronx. As a result, it is alleged that the infant suffered a fracture of the left orbit of the skull, with accompanying traumatic conjunctivitis, discomfort and loss of vision; multiple lacerations of the face and head, which resulted in scarring; a contusion of the first and second left teeth; a brain concussion, which caused headaches, dizziness and retrograde amnesia; and severe emotional distress.
A personal injury action was commenced on September 8, 1980 and issue was joined on February 4, 1981. Thereafter, on October 5, 1981, defendant requested that the infant be made [203]*203available for a physical examination and, on January 21, 1982, moved to compel such examination. The pro forma motion, utilizing printed forms, was returnable February 18, 1982 and granted by Justice Callahan without opposition, the court directing plaintiff to submit to an examination on a date and time to be agreed upon by the parties, no later than April 12, 1982.
Prior and subsequent to the return date, plaintiffs’ attorneys sent mailgrams to the plaintiffs, advising them to contact counsel. As a result, counsel learned that plaintiffs had moved, without a forwarding address. Numerous other attempts were made to contact plaintiffs by letters and telephone.
On May 13, 1982, one month after the outside date for the physical, defendant again moved to dismiss, alleging a willful failure to comply with the prior order. Justice Silbowitz granted the contested motion to the extent of precluding plaintiffs from testifying as to his injuries unless there was compliance with the prior order within 45 days. The order, dated June 10, 1982, was served June 23, 1982.
On August 20, 1982, only eight days after expiration of the 45-day period, defendant once again moved to dismiss. The contested motion was granted by Justice Mercorella only to the extent of directing the infant to submit to a physical at least 10 days before a note of issue was filed and providing that, should counsel locate the plaintiffs "sooner”, the other parties were to be notified so that a date for the examination could be fixed. Contrary to the interpretation expressed by the dissent, Justice Mercorella’s order, which superseded the prior order of Justice Silbowitz, was not an order of preclusion in form or substance.
As a result, on January 12, 1983, defendant embarked upon a new and different course by serving a 90-day notice and, on May 17, 1983, one month after expiration of the 90-day period, moved to dismiss for neglect to prosecute. The motion, returnable June 14, was conditionally granted by Justice Callahan, unless the case was noticed for trial within 60 days. The order, dated August 1, 1983, was served August 17, and, on October 24, 1983, three days after expiration of the 60-day period, defendant moved to dismiss for the failure to place the case on the calendar. Justice Cotton granted the motion on default by order dated February 2, 1984 and served March 6, 1984.
One month later, on April 14, 1984, the present action was [204]*204commenced to recover for the same personal injuries sustained by the now 15-year-old infant. The answer included a defense of res judicata, the sole issue on this appeal.
In our view, Special Term properly denied the motion to dismiss, holding that res judicata was not a defense since the first action was dismissed for failure to prosecute, a disposition which was not on the merits and was without prejudice under CPLR 3216 (a). CPLR 3216 (a) expressly provides that, "[u]n-less the order specifies otherwise, the dismissal [for want of prosecution] is not on the merits.” Nor does it preclude the commencement of another action on the same cause of action, instituted within the applicable period of limitations (see, Gundershein v Bradley-Mahony Coal Corp., 295 NY 539, 540-541; 9 Carmody-Wait 2d, NY Prac § 63:224, at 232-233; Siegel, NY Prac §§ 444-446, at 589-591).
In concluding otherwise, our dissenting colleague misinterprets the record in finding that the second action was brought "to circumvent two orders of preclusion” and that an unconditional dismissal is equivalent to a dismissal on the merits for res judicata purposes. Contrary to the dissent’s conclusion, the order of Justice Mercorella was not an order of preclusion and the unconditional dismissal by Justice Cotton was not on the merits. While the dissent refers to "a persistent pattern of neglect” by plaintiffs or their attorneys, this overlooks the fact that during the period when counsel was unable to ascertain the whereabouts of the plaintiffs, who had moved (a fact made known to the defendant), appellant embarked upon a series of motions, presumably to make a record to dismiss for the infant’s failure to appear for a physical examination.
The dissent’s reliance upon Strange v Montefiore Hosp. & Med. Center (59 NY2d 737, affg 91 AD2d 507) and Barrett v Kasco Constr. Co. (56 NY2d 830) is misplaced. Unlike those cases, the dismissal of the first action here was not based upon a preclusion order or grant of summary judgment but was a dismissal for neglect to prosecute — in not placing the case on the calendar within a certain period of time — not on the merits and, therefore, did not bar commencement of the second action for the same relief (see, Maitland v Trojan Elec. & Mach. Co., 65 NY2d 614, 615-616).
Jones v Maphey (50 NY2d 971) and Headley v Noto (22 NY2d 1), relied upon by the dissent, are clearly distinguishable since, in each case, the dismissal was expressly "on the merits”. Unlike those cases, the orders in our case did not so specify. Neither the order of Justice Callahan, conditionally [205]*205dismissing unless the case was placed on the calendar within 60 days, nor the subsequent order of Justice Cotton, which dismissed the first complaint, reached the merits of the underlying controversy so as to invoke the doctrine of res judicata. Inasmuch as the Statute of Limitations had been tolled as a result of plaintiff’s infancy, the dismissal for want of prosecution did not bar commencement of a new action within the applicable period of limitations.
This has been settled law in this State, reconfirmed by the Court of Appeals within the last year in Maitland v Trojan Elec. & Mach. Co. (supra). In that case, plaintiff failed to comply with an order directing service of answers to interrogatories and, as a result, the complaint was dismissed. The dismissal order, however, did not indicate whether the disposition was on the merits.
Free access — add to your briefcase to read the full text and ask questions with AI
Order, Supreme Court, Bronx County (Irwin M. Silbowitz, J.), entered March 21, 1985, denying defendant’s motion for summary judgment dismissing the complaint on the ground of res judicata, affirmed, without costs or disbursements.
On this record, we agree that res judicata is not available as a defense to plaintiffs’ second action, alleging essentially the same cause of action for negligence interposed in the first complaint, which was dismissed for failure to prosecute pursuant to CPLR 3216 (a). The dismissal was not on the merits and, since the applicable Statute of Limitations was tolled during the infancy of the plaintiff, this did not constitute a bar to commencement of a new action for the same relief.
On June 15, 1979, Vereese Holley, then 10 years of age, was injured when he tripped and fell through a second-floor window at premises owned, maintained and controlled by defendant, at 1311 College Avenue in The Bronx. As a result, it is alleged that the infant suffered a fracture of the left orbit of the skull, with accompanying traumatic conjunctivitis, discomfort and loss of vision; multiple lacerations of the face and head, which resulted in scarring; a contusion of the first and second left teeth; a brain concussion, which caused headaches, dizziness and retrograde amnesia; and severe emotional distress.
A personal injury action was commenced on September 8, 1980 and issue was joined on February 4, 1981. Thereafter, on October 5, 1981, defendant requested that the infant be made [203]*203available for a physical examination and, on January 21, 1982, moved to compel such examination. The pro forma motion, utilizing printed forms, was returnable February 18, 1982 and granted by Justice Callahan without opposition, the court directing plaintiff to submit to an examination on a date and time to be agreed upon by the parties, no later than April 12, 1982.
Prior and subsequent to the return date, plaintiffs’ attorneys sent mailgrams to the plaintiffs, advising them to contact counsel. As a result, counsel learned that plaintiffs had moved, without a forwarding address. Numerous other attempts were made to contact plaintiffs by letters and telephone.
On May 13, 1982, one month after the outside date for the physical, defendant again moved to dismiss, alleging a willful failure to comply with the prior order. Justice Silbowitz granted the contested motion to the extent of precluding plaintiffs from testifying as to his injuries unless there was compliance with the prior order within 45 days. The order, dated June 10, 1982, was served June 23, 1982.
On August 20, 1982, only eight days after expiration of the 45-day period, defendant once again moved to dismiss. The contested motion was granted by Justice Mercorella only to the extent of directing the infant to submit to a physical at least 10 days before a note of issue was filed and providing that, should counsel locate the plaintiffs "sooner”, the other parties were to be notified so that a date for the examination could be fixed. Contrary to the interpretation expressed by the dissent, Justice Mercorella’s order, which superseded the prior order of Justice Silbowitz, was not an order of preclusion in form or substance.
As a result, on January 12, 1983, defendant embarked upon a new and different course by serving a 90-day notice and, on May 17, 1983, one month after expiration of the 90-day period, moved to dismiss for neglect to prosecute. The motion, returnable June 14, was conditionally granted by Justice Callahan, unless the case was noticed for trial within 60 days. The order, dated August 1, 1983, was served August 17, and, on October 24, 1983, three days after expiration of the 60-day period, defendant moved to dismiss for the failure to place the case on the calendar. Justice Cotton granted the motion on default by order dated February 2, 1984 and served March 6, 1984.
One month later, on April 14, 1984, the present action was [204]*204commenced to recover for the same personal injuries sustained by the now 15-year-old infant. The answer included a defense of res judicata, the sole issue on this appeal.
In our view, Special Term properly denied the motion to dismiss, holding that res judicata was not a defense since the first action was dismissed for failure to prosecute, a disposition which was not on the merits and was without prejudice under CPLR 3216 (a). CPLR 3216 (a) expressly provides that, "[u]n-less the order specifies otherwise, the dismissal [for want of prosecution] is not on the merits.” Nor does it preclude the commencement of another action on the same cause of action, instituted within the applicable period of limitations (see, Gundershein v Bradley-Mahony Coal Corp., 295 NY 539, 540-541; 9 Carmody-Wait 2d, NY Prac § 63:224, at 232-233; Siegel, NY Prac §§ 444-446, at 589-591).
In concluding otherwise, our dissenting colleague misinterprets the record in finding that the second action was brought "to circumvent two orders of preclusion” and that an unconditional dismissal is equivalent to a dismissal on the merits for res judicata purposes. Contrary to the dissent’s conclusion, the order of Justice Mercorella was not an order of preclusion and the unconditional dismissal by Justice Cotton was not on the merits. While the dissent refers to "a persistent pattern of neglect” by plaintiffs or their attorneys, this overlooks the fact that during the period when counsel was unable to ascertain the whereabouts of the plaintiffs, who had moved (a fact made known to the defendant), appellant embarked upon a series of motions, presumably to make a record to dismiss for the infant’s failure to appear for a physical examination.
The dissent’s reliance upon Strange v Montefiore Hosp. & Med. Center (59 NY2d 737, affg 91 AD2d 507) and Barrett v Kasco Constr. Co. (56 NY2d 830) is misplaced. Unlike those cases, the dismissal of the first action here was not based upon a preclusion order or grant of summary judgment but was a dismissal for neglect to prosecute — in not placing the case on the calendar within a certain period of time — not on the merits and, therefore, did not bar commencement of the second action for the same relief (see, Maitland v Trojan Elec. & Mach. Co., 65 NY2d 614, 615-616).
Jones v Maphey (50 NY2d 971) and Headley v Noto (22 NY2d 1), relied upon by the dissent, are clearly distinguishable since, in each case, the dismissal was expressly "on the merits”. Unlike those cases, the orders in our case did not so specify. Neither the order of Justice Callahan, conditionally [205]*205dismissing unless the case was placed on the calendar within 60 days, nor the subsequent order of Justice Cotton, which dismissed the first complaint, reached the merits of the underlying controversy so as to invoke the doctrine of res judicata. Inasmuch as the Statute of Limitations had been tolled as a result of plaintiff’s infancy, the dismissal for want of prosecution did not bar commencement of a new action within the applicable period of limitations.
This has been settled law in this State, reconfirmed by the Court of Appeals within the last year in Maitland v Trojan Elec. & Mach. Co. (supra). In that case, plaintiff failed to comply with an order directing service of answers to interrogatories and, as a result, the complaint was dismissed. The dismissal order, however, did not indicate whether the disposition was on the merits. Thereafter, plaintiffs commenced a second action based on the identical causes of action alleged in the first action. Special Term’s denial of defendant’s motion to dismiss on the ground of res judicata was reversed by the Appellate Division, Second Department (102 AD2d 845), but the Court of Appeals reinstated the complaint. It held that the dismissal did not operate to bar commencement of a new action and distinguished both Strange (supra) and Barrett (supra), where the second action amounted to an attempt to circumvent an order of preclusion or summary judgment. The court’s holding in Maitland is most instructive in this case: "Where, as here, a dismissal of a cause of action occurs prior to the close of proponent’s evidence, the dismissal will not be deemed on the merits so as to preclude the commencement of a second action. (CPLR 5013.) This is not a case such as Strange v Montefiore Hosp. & Med. Center (59 NY2d 737) where plaintiff’s second action constituted an attempt to circumvent an order of preclusion or summary judgment, the function of which is to effectively foreclose proponent’s offer of proof. (See also, Barrett v Kasco Constr. Co., 56 NY2d 830.) Where a plaintiff’s noncompliance with a disclosure order does not result in a dismissal with prejudice, or an order of preclusion or summary judgment in favor of defendant so as to effectively close plaintiff’s proof, dismissal resulting from the noncompliance is not a merits determination so as to bar commencement of a second action.” (65 NY2d, at pp 615-616.)
Unlike our case, the dismissal of the first action in both Strange (supra) and Barrett (supra) resulted from a grant of summary judgment based upon a preclusion order, the Court of Appeals concluding that, although the orders did not recite that they were on the merits, they were entitled to res [206]*206judicata effect "to prevent the plaintiff from circumventing the preclusion decree” (Barrett v Kasco Constr. Co., supra, at p 831).
Here, however, the dismissal was for the failure to place the case on the calendar. Clearly, this was a dismissal for want of prosecution and, by the terms of the order, was, therefore, not on the merits. The fact that the court dismissed the first action "unconditionally” meant just that — there was no condition attached to the dismissal and was not equivalent to a dismissal on the merits, as the dissent assumes. Nor is it relevant that no appeal was taken from the order of Justice Cotton since that order, entered "on default”, was not appeal-able in any event.
Thus, the policy considerations which led to the results in Strange (supra) and Barrett (supra) are not present here. Rather, the situation here is akin to that in Maitland (supra), where plaintiff’s noncompliance with a disclosure order was held not to be a determination on the merits so as to bar reinstitution of a second action. In our view, Maitland is dispositive and, taking into account the infancy of the injured plaintiff, the second action was still timely and not barred by the prior dismissal of the first action for failure to prosecute (CPLR 3216 [a]; Maitland v Trojan Elec. & Mach. Co., supra; Matter of Commissioner of Social Servs. of Erie County v Hargrove, 84 AD2d 946; Medical Health Servs. v Fountain Center Corp., 52 AD2d 621). Concur — Sandler, J. P., Asch, Fein and Kassal, JJ.