Colon v. New York City Health and Hospitals

Full title: CHANEL COLON, an Infant, by Her Parent and Natural Guardian, DIANE CHOW…

Court: Appellate Division of the Supreme Court of New York, First Department

Date published: Oct 18, 1990

166 A.D.2d 291 (N.Y. App. Div. 1990)

564 N.Y.S.2d 130

Opinion

October 18, 1990

Appeal from the Supreme Court, New York County (Michael Dontzin, J.).

The prior order dismissing plaintiff's complaint alleging medical malpractice was tantamount to an order of preclusion for plaintiff's failure to comply with various discovery demands or to file a certificate of merit. That this was the court's intent is evident from the transcript and the underlying decision. Accordingly, the dismissal was on the merits and the IAS court properly dismissed the re-served complaint on the ground that it was nothing more than an attempt by plaintiff to circumvent the court's original order and judgment. (See, Anteri v. NRS Constr. Corp., 148 A.D.2d 563, 564-565.)

Concur — Murphy, P.J., Sullivan, Milonas and Smith, JJ.