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Baumann v. Mid Island Hospital

Appellate Division of the Supreme Court of New York, Second Department
May 26, 1987
130 A.D.2d 700 (N.Y. App. Div. 1987)

Opinion

May 26, 1987

Appeal from the Supreme Court, Suffolk County (Lama, J.).


Ordered that the order is affirmed insofar as appealed from, with costs.

The underlying action was instituted to recover damages resulting from medical malpractice. The defendant in the main action instituted a third-party action against the appellant. The third-party complaint was stricken for noncompliance with a disclosure order. The order striking the third-party complaint was silent as to whether it was with prejudice. Judgment was entered as a result of the order, dismissing the third-party complaint. The words "with prejudice" were crossed off the judgment by the court clerk. Over 20 months later, the defendant third-party plaintiff commenced a new third-party action against the appellant on the same cause of action. The appellant moved to dismiss this second action on the grounds, inter alia, of res judicata. Special Term denied this motion. We agree.

In Maitland v. Trojan Elec. Mach. Co. ( 65 N.Y.2d 614, 615-616) it was held that where "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". We believe that Maitland is dispositive of this case.

We have reviewed the appellant's remaining contentions and find them to be without merit. Mangano, J.P., Niehoff, Lawrence and Kooper, JJ., concur.


Summaries of

Baumann v. Mid Island Hospital

Appellate Division of the Supreme Court of New York, Second Department
May 26, 1987
130 A.D.2d 700 (N.Y. App. Div. 1987)
Case details for

Baumann v. Mid Island Hospital

Case Details

Full title:WALTER BAUMANN, JR., Plaintiff, v. MID ISLAND HOSPITAL, Defendant and…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: May 26, 1987

Citations

130 A.D.2d 700 (N.Y. App. Div. 1987)