Opinion
105
February 4, 2003.
Order, Supreme Court, Bronx County (Michael DeMarco, J.), entered on or about July 24, 2001, which, inter alia, granted the cross motion of defendant New York City Housing Authority to dismiss plaintiff's recommenced action, unanimously affirmed, without costs.
Ephrem Wertenteil, for plaintiff-appellant.
David B. Hamm, for defendant-respondent.
Before: Nardelli, J.P., Andrias, Buckley, Rosenberger, Friedman, JJ.
The infant plaintiff, by her legal guardian, argues that this second personal injury brought on her behalf to recover for injuries allegedly sustained in May 1995 was properly commenced, and was not barred by the dismissal of her identical first action, inasmuch as the order dismissing the first action did not state that the dismissal was on the merits, and was not denominated an order of preclusion. While not denominated as such, however, the order dismissing the first action was tantamount to an order of preclusion, the dismissal of the action having been premised on plaintiff's unjustified, unexplained refusal to comply with certain relevant discovery requests and a conditional order of dismissal (Perez v. New York City Hous. Auth., 294 A.D.2d 170; see e.g. Taylor v. New York City Hous. Auth., 234 A.D.2d 52; Berman v. Szpilzinger, 200 A.D.2d 367).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.