Stray v. Lutz

—Appeal from an order of Supreme Court, Onondaga County (Garni, J.), entered August 5, 2002, which denied defendants’ motion to dismiss the complaint. It is hereby ordered that the order so appealed from be and the same hereby is affirmed without costs. Memorandum: The narrow issue before us on this appeal is whether a prior order of dismissal for a discovery default is to be given res judicata effect when it was not preceded by a preclusion order and does not specify that the dismissal is on the merits, or whether that order permits the commencement of another action instituted within the applicable period of limitations (see Gundershein v Bradley-Mahony Coal Corp., 295 NY 539, 540-541 [1946]; Siegel, NY Prac §§ 444-446, at 718-721 [3d ed]). We conclude that such an order should not be given res judicata effect. Thus, Supreme Court properly denied defendants’ motion to dismiss the complaint on that ground. Here, plaintiff’s mother had commenced the prior action on behalf of plaintiff, who was then only nine years old, and defendants moved for an order of preclusion when the attorney hired by plaintiffs mother failed to respond to a letter from defendants’ attorney setting forth a proposed discovery schedule. Although the court’s order of dismissal recites that defendants’ motion is “granted,” the court did not issue an order of preclusion and, instead, recited in the order that the complaint “is hereby dismissed and the Complaint stricken.” Upon our review of the record, we conclude that the attorney’s failure to respond to the letter did not amount to contumacious conduct warranting a dismissal of the complaint on the merits. Rather, the attorney’s failure to respond was more in keeping with an intent to abandon the action, which would not preclude a refiling of the action within the statute of limitations (see Maitland v Trojan Elec. & Mach. Co., 65 NY2d 614 [1985]; Greenberg v De Hart, 4 NY2d 511 [1958]). Consequently, in the absence of an order of preclusion preceding the order of dismissal, it cannot be said that the conduct of plaintiffs mother and former attorney and the court’s issuance of an order of dis [837] missal unaccompanied by the words “on the merits” demonstrate the exceptional circumstances warranting dismissal on the merits (see Palmer v Fox, 28 AD2d 968 [1967], affd 22 NY2d 667 [1968]). Absent a dismissal on the merits, plaintiff should not be barred from bringing the present action. In our view, the dissent’s reliance on Strange v Montefiore Hosp. & Med. Ctr. (59 NY2d 737 [1983]) is misplaced because in that case the defendant’s motion for summary judgment was granted based on a prior preclusion order against the plaintiff. Here, as previously noted, no preclusion order was issued (see Holley v Mandate Realty Corp., 121 AD2d 202, 204 [1986], affd 69 NY2d 721 [1987]). All concur except Pigott, Jr., P.J., who dissents and votes to reverse in accordance with the following memorandum.