Opinion
December 12, 1975
Appeal from the Oneida Special Term.
Present — Marsh, P.J., Mahoney, Goldman and Del Vecchio, JJ.
Order unanimously affirmed, without costs. Memorandum: Plaintiff's first action was dismissed as abandoned pursuant to CPLR 3404. Apparently plaintiff had failed to serve a bill of particulars, although defendant never obtained an order of preclusion. Subsequently, but concededly before expiration of the Statute of Limitations, plaintiff served a new summons together with a complaint which was identical to that of the first action. Defendant's motion for dismissal of the second complaint on the ground of abandonment of the identical first action was properly denied by Special Term. Abandonment is not a basis for a motion to dismiss (cf. CPLR 3211). "A dismissal of an action pursuant to CPLR 3404 because it has not been restored to the calendar within one year after being marked 'off' or struck from the calendar is a dismissal for neglect to prosecute. * * * If the statute of limitations has not run a new action on the same cause is not barred since the dismissal is not on the merits" (4 Weinstein-Korn-Miller, N Y Civ Prac, par 3404.09).