Coaxum v Nor-Topia Serv. Sta., Inc.

Coaxum v Nor-Topia Serv. Sta., Inc. 2012 NY Slip Op 08637 Decided on December 13, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 13, 2012
Gonzalez, P.J., Mazzarelli, Acosta, Román, JJ.
8834 309385/09

[*1]Henry Coaxum, Plaintiff-Appellant,

v

Nor-Topia Service Station, Inc., et al., Defendants-Respondents.




Burns & Harris, New York (Christopher J. Donadio of
counsel), for appellant.
Law Office of James J. Toomey, New York (Evy Kazansky of
counsel), for Nor-Topia Service Station, Inc. and Michael
Vasquez, respondents.
O'Connor, McGuinness, Conte, Doyle, Oleson, Watson &
Loftus, LLP, White Plains (Montgomery L. Effinger of
counsel), for Darryl A. Robinson, respondent.

Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered July 12, 2011, which, upon reargument, inter alia, granted defendants' motions to dismiss the complaint as barred by CPLR § 205(a), unanimously affirmed, without costs.

The motion court correctly determined that the order dismissing plaintiff's complaint under Bronx County Index No., 28626/2001 was for failure to prosecute, as evidenced by plaintiff's willful and contumacious disregard for the court's discovery orders (Perez v New York City Hous. Auth., 302 AD2d 210 [1st Dept 2003]). Accordingly, plaintiff's second complaint, filed under Bronx County Index No. 309385/09, was barred by CPLR § 205(a) and properly dismissed by the motion court.

We have considered plaintiff's remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 13, 2012

CLERK