Yates v. Roco Co.

48 A.D.3d 800, 851 N.Y.S.2d 356

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 26, 2008
• Status: Published

Opinion

In an action to recover damages for personal injuries, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Kangs County (Ruchelsman, J.), dated November 20, 2006, as denied that branch of their motion which was to dismiss the complaint pursuant to CPLR 3211 (a) (5) as barred by the doctrine of res judicata.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, and the motion to dismiss the complaint is granted.

In an identical prior action which the plaintiff commenced against the defendants, the Supreme Court dismissed the complaint based upon a preclusion order it had issued because of the plaintiffs repeated failures to appear for an independent medical examination. Although the order of the Supreme Court did not specifically recite that the dismissal was “on the merits,” it should have been accorded res judicata effect in order to prevent the plaintiff from circumventing the preclusion decree (see Strange v Montefiore Hosp. & Med. Ctr., 59 NY2d 737, 738-739 [1983]; Kalinka v Saint Francis Hosp., 34 AD3d 742, 744 [2006]).

The plaintiff’s remaining contention is without merit. Spolzino, J.P., Angiolillo, Balkin and Leventhal, JJ., concur.