Opinion
2007-941 K C.
Decided July 10, 2008.
Appeal from an order of the Civil Court of the City of New York, Kings County (Richard Velasquez, J.), entered April 20, 2007. The order denied defendant's motion for summary judgment.
Order affirmed without costs.
PRESENT: PESCE, P.J., RIOS and STEINHARDT, JJ.
In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground of res judicata. Defendant argued that plaintiff had previously commenced an identical action, which was dismissed pursuant to CPLR 3126 (3) for plaintiff's failure to comply with a so-ordered discovery stipulation. Plaintiff asserted that the action was proper since the prior action was not dismissed with prejudice. The court below denied defendant's motion. The instant appeal by defendant ensued.
"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" ( Maitland v Trojan Elec. Mach. Co., 65 NY2d 614, 615-616; see Daluise v Sottile , 40 AD3d 801 , 802-803; Aguilar v Jacoby , 34 AD3d 706 , 707). In the case at bar, plaintiff's prior action was dismissed after the court below granted defendant's motion to strike the complaint pursuant to CPLR 3126 (3). Since plaintiff's noncompliance did not "result in a dismissal with prejudice, or an order of preclusion or summary judgment," plaintiff was not barred from commencing a second action ( see Maitland, 65 NY2d at 615-616; Daluise, 40 AD3d at 802). Accordingly, the court below properly denied defendant's motion for summary judgment dismissing the complaint based on the doctrine of res judicata ( cf. First Help Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., ___ Misc 3d ___, 2008 NY Slip Op 51266[U] [App Term, 2d 11th Jud Dists 2008] [so-ordered stipulation concerning discovery provided that a failure to provide the discovery would result in preclusion]).
Pesce, P.J., Rios and Steinhardt, JJ., concur.