Opinion
July 12, 1990
Appeal from the Supreme Court, New York County (Bruce McM. Wright, J.).
The sole issue presented on appeal is whether plaintiffs were entitled to the benefit of CPLR 205 (a) upon dismissal of their initial verified complaint for failure to proceed. CPLR 205 (a) provides that upon dismissal of an action other than by "voluntary discontinuance, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits, the plaintiff * * * may commence a new action upon the same [cause of action] within six months after the termination". Plaintiffs' failure to appear and the subsequent dismissal of the original action constituted a dismissal "for neglect to prosecute" within the meaning of CPLR 205 (a). (Laffey v. City of New York, 72 A.D.2d 685 [1st Dept 1979], affd 52 N.Y.2d 796; Wright v. Defelice Son, 22 A.D.2d 962 [2d Dept 1964], affd 17 N.Y.2d 586.) That the same court which dismissed the original complaint decided the motions resulting in the order appealed supports this conclusion. (See, Schuman v. Hertz Corp., 17 N.Y.2d 604.)
Concur — Kupferman, J.P., Sullivan, Carro, Ellerin and Smith, JJ.