Murray v. Morelli

In a chiropractic malpractice action, the plaintiff appeals from an order of the Supreme Court, Kings County (Levine, J.), entered November 4, 1992, which granted the defendant’s motion, pursuant to CPLR 3211 (a) (5), to dismiss the action as time barred. Ordered that the order is affirmed, with costs. The Supreme Court properly determined that its prior dismissal of a similar action between the parties was based on the plaintiff’s neglect to prosecute (see, Flans v Federal Ins. Co., 43 NY2d 881; Keel v Parke, Davis & Co., 72 AD2d 546, affd 50 NY2d 833; Ivory v Eckstrom, 98 AD2d 763; Kelly v Rosenthal, 176 AD2d 283). Accordingly, the plaintiff was not entitled to the six-month savings provision contained in CPLR 205 (a), and her present action was properly dismissed as time barred. Rosenblatt, J. P., O’Brien, Ritter and Florio, JJ., concur.