Randy Hernandez, an Infant by his Mother and Natural Guardian, Yalitza Diaz, Plaintiff–Respondent, v. St. Barnabas Hospital, Defendant–Appellant, Dr. Christopher Leong, M.D., et al., Defendants. (2011)

Supreme Court, Appellate Division, First Department, New York.

Randy Hernandez, an Infant by his Mother and Natural Guardian, Yalitza Diaz, Plaintiff–Respondent, v. St. Barnabas Hospital, Defendant–Appellant, Dr. Christopher Leong, M.D., et al., Defendants.

5925

Decided: November 03, 2011

Mazzarelli, J.P., Saxe, Acosta, DeGrasse, Manzanet–Daniels, JJ.

Garbarini & Scher, P.C., New York (William D. Buckley of counsel), for appellant. Thomas L. Bondy, P.C., New York (Thomas L. Bondy of counsel), for respondent.

Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered July 16, 2010, which, in this medical malpractice action, to the extent appealed from as limited by the briefs, denied defendant-appellant's motion to dismiss the complaint on the basis of res judicata, unanimously affirmed, without costs.

Supreme Court correctly determined that this action is not barred by the doctrine of res judicata. The prior action was dismissed as a result of plaintiff's counsel's failure to attend a calendar call (see 22 NYCRR 202.27 [b] ). Accordingly, the dismissal was not on the merits and thus does not have res judicata effect (Espinoza v Concordia Intl. Forwarding Corp., 32 AD3d 326, 328 [2006]; Kalisch v. Maple Trade Fin. Corp., 35 AD3d 291 [2006] ). We have considered defendant's remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

CLERK

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