SAN FILIPPO v. ADLER (2000)

In an action to recover damages for medical malpractice, the plaintiff appeals from an order of the Supreme Court, Kings County (Patterson, J.), dated February 1, 2000, which granted the motion of the defendant David Adler, and the separate motion of the defendants Jennifer Jacobson and Lutheran Medical Center, Inc., to dismiss the complaint insofar as asserted against them pursuant to CPLR 3211(a)(5) on the ground that the action was barred by the doctrine of res judicata.

ORDERED that the order is reversed, on the law, without costs or disbursements, the motions are denied, and the complaint is reinstated.

 The Supreme Court erred in dismissing the plaintiff's complaint on the ground that it was barred by the doctrine of res judicata.   The dismissal of a prior action between the same parties for failure to prosecute is not a dismissal on the merits and does not bar a second action based upon the same facts “[u]nless the order specifies otherwise” (CPLR 3216[a];  see, Gallo v. Teplitz Tri-State Recycling, 254 A.D.2d 253, 678 N.Y.S.2d 140;  Struve v. Bingham, 244 A.D.2d 178, 663 N.Y.S.2d 578;  Medalie v. Jacobson, 120 A.D.2d 652, 502 N.Y.S.2d 247;  Lewin v. Yedvarb, 61 A.D.2d 1025, 403 N.Y.S.2d 90).

MEMORANDUM BY THE COURT.