Alaimo v. Velco Enterprises

—In an action to recover damages for goods sold and delivered, the plaintiff appeals from so much of an order of the Supreme Court, Westchester County (Fredman, J.), entered February 15, 1996, as granted the defendant’s motion to dismiss the action pursuant to CPLR 3211 (a) (5). Ordered that the order is affirmed insofar as appealed from, with costs. A prior action by the plaintiff’s assignor was dismissed after the Supreme Court determined that it had failed to appear for two court-ordered conferences, and had failed to comply with discovery requests for more than three years. Under these circumstances, the dismissal of the prior action was for "neglect to prosecute” within the meaning of CPLR 205 (a) (see, Flans v Federal Ins. Co., 43 NY2d 881; see also, Murray v Ralph E. Morelli, P. C., 208 AD2d 604; Ginsberg v City of Long Beach, 191 AD2d 478; Kelly v Rosenthal, 176 AD2d 283). Accordingly, the court did not improvidently exercise its discretion in dismissing this action which was based upon the same transaction. The plaintiff’s remaining contentions are without merit. Bracken, J. P., Copertino, Joy, Florio and McGinity, JJ., concur.