Opinion
July 20, 1995
Appeal from the Supreme Court, Albany County (Keegan, J.).
Though directed by Supreme Court to do so, and having had some four months to accomplish it, plaintiff failed to secure substitute counsel so that this personal injury action could be restored to the trial calendar. This directive was prompted by the fact that, in April 1993, plaintiff's then-counsel had withdrawn from the case on the eve of trial. In these circumstances, the court cannot be faulted for having granted defendant's motion to dismiss the complaint ( see, CPLR 3216 [d]; Holley v. Mandate Realty Corp., 121 A.D.2d 202, 206, affd 69 N.Y.2d 721; cf., Headley v. Noto, 22 N.Y.2d 1, 4). It bears noting, however, that there being no explicit declaration to the contrary ( compare, Jones v. Maphey, 50 N.Y.2d 971, 973), a dismissal of this sort is not considered to be on the merits and does not preclude commencement of a new action within the applicable Statute of Limitations ( see, CPLR 3216 [a]; Holley v. Mandate Realty Corp., supra, at 204), if the same has not yet expired ( see, CPLR 208; McGill v. Board of Educ., 59 A.D.2d 888, 888-889, appeal dismissed 43 N.Y.2d 893, 949).
Mikoll, J.P., Crew III, White and Peters, JJ., concur. Ordered that the order is affirmed, with costs.