A.B. Med. Servs., PLLC v New York Cent. Mut. Fire Ins. Co. (2010 NY Slip Op 50702(U))

A.B. Med. Servs., PLLC v New York Cent. Mut. Fire Ins. Co.

2010 NY Slip Op 50702(U) [27 Misc 3d 132(A)]

Decided on April 13, 2010

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

A.B. Medical Services, PLLC, D.A.V. CHIROPRACTIC, P.C. and LVOV ACUPUNCTURE, P.C. a/a/o KENNY CALLENDER, Respondents,

against

New York Central Mutual Fire Insurance Company, Appellant.

Appeal from an order of the District Court of Nassau County, Third District (Norman Janowitz, J.), entered November 26, 2008. The order denied defendant's motion to dismiss the complaint.

In this action by three providers to recover assigned first-party no-fault benefits, defendant moved for dismissal of the complaint on the ground of res judicata (CPLR 3211 [a] [5]). Defendant argued that plaintiffs had previously commenced an identical action, which had been dismissed pursuant to CPLR 3126 (3) for plaintiffs' failure to comply with a discovery order. Defendant appeals from the denial of its motion.

"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 [1985]; Downtown Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 20 Misc 3d 137[A], 2008 NY Slip Op 51552[U] [App Term, 2d & 11th Jud Dists 2008]; see Daluise v Sottile, 40 AD3d 801, 802-803 [2007]; Aguilar v Jacoby, 34 AD3d 706, 707 [2006]). Plaintiffs' prior action was dismissed pursuant to CPLR 3126 (3), but the dismissal order did not state that the dismissal was with prejudice, nor does a review of the record reveal the existence of a preclusion order. Consequently, plaintiffs were not barred from [*2]commencing a second action. Accordingly, the District Court properly denied defendant's pre-answer motion to dismiss the complaint based on the doctrine of res judicata.