Opinion
No. 3454.
October 26, 2010.
Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered July 29, 2010, which granted defendants' motions to dismiss the complaint, unanimously affirmed, with costs.
Mallilo Grossman, Flushing (Francesco Pomara, Jr. of counsel), for appellant.
Michael A. Cardozo, Corporation Counsel, New York (Elina Druker of counsel), for municipal respondent.
Molod Spitz DeSantis, P.C., New York (Marcy Sonneborn of counsel), for Milea Truck Sales Corp. and M.T.S. Realty Corp., respondents.
Law Offices of Peter D. Assail, LLC, New York (Peter D. Assail of counsel), for Cibao Meat Products Inc. respondent.
James J. Toomey, New York for 38-40 Food Corp., Luis Diaz and Pedro Rodriguez, respondents.
Before: Tom, J.P., Saxe, Catterson, Renwick and DeGrasse, JJ.
This Court affirmed the dismissal of plaintiffs first slip-and-fall action against these defendants as a sanction for plaintiffs "persistent, unexplained noncompliance with four disclosure orders, including a self-executing conditional order of dismissal that was granted on default and became absolute" ( 71 AD3d 468, 469). Plaintiff may not commence a new action upon the same occurrence because that dismissal was "a dismissal of the complaint for neglect to prosecute the action" (CPLR 205 [a]; compare Andrea v Arnone, Hedin, Casker, Kennedy Drake, Architects Landscape Architects, PC. [Hahiterra Assoc.], 5 NY3d 514, with Estate of Ungar v Palestinian Auth., 44 AD3d 176).