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

Gladys ESPINOZA, Plaintiff-Respondent, v. CONCORDIA INTERNATIONAL FORWARDING CORP., et al., Defendants-Appellants.

Decided: August 24, 2006

BUCKLEY, P.J., TOM, FRIEDMAN, NARDELLI, McGUIRE, JJ. Wilson, Elser, Moskowitz & Dicker LLP, White Plains (Joseph F. Mahoney of counsel), for Concordia International Forwarding Corp., appellant. Robert L. Dougherty, Garden City, for Professional Line Warehousing Inc. and Raphael Hernandez, appellants. Finkelstein & Partners, L.L.P., Newburgh (Terry D. Horner of counsel), for respondent.

Order, Supreme Court, Bronx County (George D. Salerno, J.), entered January 5, 2006, which, in an action for personal injuries, inter alia, denied defendants' motion and cross motion to dismiss the complaint, unanimously affirmed, without costs.

Plaintiff timely commenced an action to recover damages for personal injuries she allegedly sustained on August 30, 2002 as a result of a workplace accident.   That action was dismissed on or about April 1, 2004 after plaintiff's counsel, who missed three previous conferences, failed to appear at a compliance conference.   On August 4, 2005, plaintiff commenced this action to recover damages based upon the same workplace accident that was the subject of the first action.

Defendants Professional Line Warehousing d/b/a Pro Line Warehousing and Raphael Hernandez moved to dismiss this action pursuant to CPLR 3211 on the ground that it was barred by the doctrine of res judicata.   Defendant Concordia International Forwarding Corp. cross-moved for the same relief.   Supreme Court denied the motion and cross motion.

Plaintiff's first action was dismissed under 22 NYCRR 202.27(b), which permits the court to dismiss an action upon a plaintiff's failure to appear at a scheduled conference (see Campos v. New York City Health & Hosps. Corp., 307 A.D.2d 785, 763 N.Y.S.2d 292 [2003] ).   As defendants correctly note, in order to vacate her default plaintiff would be required to demonstrate both a reasonable excuse for her failure to appear at the conference and a meritorious cause of action (see e.g. Ng-A Kein v. Zeno, 23 A.D.3d 351, 806 N.Y.S.2d 65 [2005] ).   However, plaintiff did not seek to vacate her default in the prior action;  rather she commenced a new action within the applicable statute of limitations (see Bank of New York v. LS Monticello JV, 209 A.D.2d 464, 619 N.Y.S.2d 639 [1994] ).

 This case represents an instance in which a plaintiff can avoid making the requisite dual showing to vacate a default under § 202.27. In many cases, dismissal pursuant to § 202.27 occurs after the statute of limitations has expired, precluding the plaintiff from commencing a new action.   In such cases, the plaintiff's sole remedy is to seek to vacate the default and make a sufficient evidentiary showing to establish a reasonable excuse for the failure to appear and a meritorious cause of action.

Even on these less typical facts, dismissal of plaintiff's first action was not without any adverse consequences, as plaintiff was required to purchase a new index number to commence this action.   Although this is a relatively insignificant consequence compared to the prospect of being out of court entirely, it is the only one the law presently permits.

 Defendants' contention that this action is barred by the doctrine of res judicata is without merit.   A prior order that does not indicate an intention to dismiss the action on the merits is not a basis for the application of the doctrine of res judicata (see Miller Mfg. Co. v. Zeiler, 45 N.Y.2d 956, 411 N.Y.S.2d 558, 383 N.E.2d 1152 [1978];  Wilson v. New York City Hous. Auth., 15 A.D.3d 572, 791 N.Y.S.2d 567 [2005];  Mudry v. Giannattasio, 8 A.D.3d 455, 779 N.Y.S.2d 111 [2004] ).   Here, the first action was dismissed as a result of plaintiff's counsel's failure to attend a compliance conference, not on the merits.

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