| Yates v Roco Co. |
| 2008 NY Slip Op 01748 [48 AD3d 800] |
| February 26, 2008 |
| Appellate Division, Second Department |
| William Yates, Respondent, v Roco Co. et al.,Appellants. |
—[*1] Laurence M. Savedoff, PLLC, Bronx, N.Y., for respondent.
In an action to recover damages for personal injuries, the defendants appeal, as limited bytheir brief, from so much of an order of the Supreme Court, Kings County (Ruchelsman, J.),dated November 20, 2006, as denied that branch of their motion which was to dismiss thecomplaint pursuant to CPLR 3211 (a) (5) as barred by the doctrine of res judicata.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and themotion to dismiss the complaint is granted.
In an identical prior action which the plaintiff commenced against the defendants, theSupreme Court dismissed the complaint based upon a preclusion order it had issued because ofthe plaintiff's repeated failures to appear for an independent medical examination. Although theorder of the Supreme Court did not specifically recite that the dismissal was "on the merits," itshould have been accorded res judicata effect in order to prevent the plaintiff from circumventingthe preclusion decree (see Strange v Montefiore Hosp. & Med. Ctr., 59 NY2d 737,738-739 [1983]; Kalinka v Saint Francis Hosp., 34 AD3d 742, 744 [2006]).
The plaintiff's remaining contention is without merit. Spolzino, J.P., Angiolillo, Balkin andLeventhal, JJ., concur.