Opinion
2002-02832
Argued February 6, 2003.
February 24, 2003.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Richmond County (Minardo, J.), dated March 11, 2002, which, inter alia, granted the defendant's motion to dismiss the complaint pursuant to CPLR 3211(a)(5) on the ground that the action is barred by res judicata.
Litman Litman, P.C., New York, N.Y. (Jeffrey E. Litman of counsel), for appellant.
Cullen and Dykman, Brooklyn, N.Y. (John J. Burbridge and Joseph C. Fegan of counsel), for respondent.
Before: FRED T. SANTUCCI, J.P., NANCY E. SMITH, HOWARD MILLER, THOMAS A. ADAMS, JJ.
DECISION ORDER
ORDERED that the order is reversed, on the law, without costs or disbursements, the motion is denied, and the complaint is reinstated.
A nearly identical action to the instant action was previously dismissed for the plaintiff's failure to prosecute. A dismissal of a prior action between the same parties for failure to prosecute is not a dismissal on the merits and does not bar a second action based upon the same facts unless the order specifies otherwise (see Mays v. Whitfield, 282 A.D.2d 721; San Filippo v. Adler, 278 A.D.2d 402; Medalie v. Jacobson, 120 A.D.2d 652; Lewin v. Yedvarb, 61 A.D.2d 1025). Furthermore, "dismissal of an action by being marked off the trial calendar is not a dismissal on the merits" (Gallo v. Teplitz Tri-State Recycling, 254 A.D.2d 253, 254).
The order dismissing the prior action did not indicate that it was on the merits or with prejudice, and thus, the doctrine of res judicata is not applicable.
The defendant's remaining contentions are without merit.
SANTUCCI, J.P., SMITH, H. MILLER and ADAMS, JJ., concur.