Leeds v. Sturm, Ruger & Co.

In an action sounding in negligence, breach of warranty and strict liability to recover damages for personal injuries, etc., defendant Sturm, Ruger and Co., Inc., appeals from an order of the Supreme Court, Suffolk County (Doyle, J.), dated March 1,1983, which denied its motion to dismiss the complaint on the ground of res judicata. H Order reversed, on the law, with costs, and defendant’s motion to dismiss the complaint granted. 11 An earlier action against the defendant sounding in negligence, breach of warranty and strict liability was dismissed pursuant to CPLR 3126 (subd 3) because of plaintiffs’ failure to comply with a conditional preclusion order concerning discovery and inspection. The order of dismissal did not state that it was on the merits. No appeal was taken from that order. Instead, plaintiffs commenced this second action against the defendant, identical to the first. Defendant’s answer interposed the affirmative defense of res judicata. Special Term denied its motion to dismiss on that ground, noting that the prior order of dismissal did not state that it was on the merits and should not be construed as “intend[ing] anything more than to punish the plaintiffs for failure to disclose by requiring them to bring a new action”. We cannot agree. 11 In a similar set of circumstances (Barrett v Kasco Constr. Co., 56 NY2d 830, 831), the Court of Appeals has held that “although the prior judgment * * * does not specifically recite that it is ‘on the merits’, that judgment should be given res judicata effect in order to prevent the plaintiff from circumventing the preclusion decree”. We believe that Barrett is dispositive of the case at bar (see, also, Strange v Montefiore Hosp. & Med. Center, 91 AD2d 507, affd 59 NY2d 737; Schicchi v Green Constr. Corp., 100 AD2d 509; Bieniek v Miller Drug Stores, 25 AD2d 941). Gibbons, J. P., O’Connor, Boyers and Lawrence, JJ., concur.