Mays v. Whitfield , 724 N.Y.S.2d 330 ( 2001 )

—In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Nassau County (Mahon, J.), dated July 31, 2000, which denied her motion pursuant to CPLR 3211 (a) (5) to dismiss the complaint as barred by the doctrine of res judicata.

Ordered that the order is affirmed, with costs.

A nearly identical action to the instant action was dismissed pursuant to CPLR 3216 due to the plaintiff’s failure to prosecute. The Supreme Court properly denied the defendant’s motion to dismiss the instant action on the ground that it was barred by the doctrine of res judicata. The dismissal of a prior action between the same parties for failure to prosecute is not a dismissal on the merits and does not bar a second action based upon the same facts unless the order specifies otherwise (see, CPLR 3216 [a]; San Filippo v Adler, 278 AD2d 402; Medalie v Jacobson, 120 AD2d 652; Lewin v Yedvarb, 61 AD2d 1025). The order dismissing the prior action did not specify that it was on the merits, and thus, the doctrine of res judicata is not applicable. Santucci, J. P., S. Miller, Luciano, Feuerstein and Adams, JJ., concur.