Order of the Supreme Court, New York County, entered January 11, 1979, denying defendant’s motion to dismiss the action and for judgment in favor of defendant, reversed, on the law and the facts, and the motion granted, without costs and disbursements. Plaintiff brought action in 1970 to recover for injuries allegedly suffered as a result of the negligence of the defendant. In due course, the matter was assigned to an Individual Calendar Part for trial.
At a conference held on September 12, 1972, before the Justice presiding in the part, the case was set for- trial for January 22, 1973. Counsel for both sides were informed that they were to be ready to proceed on that day and that no applications for adjournment based on the unavailability of counsel or of witnesses would be entertained. On the call of the calendar on the trial date, defense counsel answered ready. However, no one appeared for plaintiff. At 11:22 a.m. defendant moved to dismiss the action.
The court granted the motion. Approximately a half hour later, plaintiff’s counsel appeared and moved to vacate the default. Initially, he requested a two-week adjournment. Subsequently, that was modified to a request for a one-day adjournment. Finally, he stated that he was ready to go to trial, but that he had no witnesses available and could not "actually proceed to trial”.
In answer to the court’s questioning, he acknowledged that he first sent a letter to his client informing her of the trial date about two weeks earlier, but that she made no response thereto. After a colloquy, the court stated that "the dismissal of the complaint will stand”. Despite an entreaty by plaintiff’s counsel that such a determination would foreclose further action by plaintiff, the court ordered dismissal of the complaint.
On January 30, 1973, some 24 days prior to the entry of the judgment of dismissal, plaintiff, in reliance on CPLR 205 (subd [a]), instituted the present action which, in all respects, is identical with the action theretofore dismissed.
That section provides that upon dismissal of an action other than by "a voluntary discontinuance, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits, the plaintiff * * * may commence a new action upon the same cause of action within six months after the termination”.
Laying aside the procedural infirmity flowing from the commencement of the present action prior to the termination by judgment of the prior one, we are constrained to hold that dismissal of the prior action was for "neglect to prosecute” within the meaning of CPLR 205 (subd [a]) (Wright v Defelice & Son, 22 AD2d 962, affd 17 NY2d 586). Hence, the institution of this action was improper and it should be dismissed. Concur— Murphy, P. J., Birns, Bloom and Silverman, JJ.
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