Santiago v City of New York

Santiago v City of New York 2010 NY Slip Op 07596 [77 AD3d 561] October 26, 2010 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, December 15, 2010

Carlos Santiago, Appellant,
v
City of New York et al., Respondents.

—[*1] Mallilo & Grossman, Flushing (Francesco Pomara, Jr. of counsel), for appellant.

Michael A. Cardozo, Corporation Counsel, New York (Elina Druker of counsel), for municipal respondent. Molod Spitz & DeSantis, P.C., New York (Marcy Sonneborn of counsel), for Milea Truck Sales Corp. and M.T.S. Realty Corp., respondents.

Law Offices of Peter D. Assail, LLC, New York (Peter D. Assail of counsel), for Cibao Meat Products Inc. respondent. James J. Toomey, New York for 38-40 Food Corp., Luis Diaz and Pedro Rodriguez, respondents.

Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered July 29, 2010, which granted defendants' motions to dismiss the complaint, unanimously affirmed, with costs.

This Court affirmed the dismissal of plaintiff's first slip-and-fall action against these defendants as a sanction for plaintiff's "persistent, unexplained noncompliance with four disclosure orders, including a self-executing conditional order of dismissal that was granted on default and became absolute" (71 AD3d 468, 469 [2010]). Plaintiff may not commence a new action upon the same occurrence because that dismissal was "a dismissal of the complaint for neglect to prosecute the action" (CPLR 205 [a]; compare Andrea v Arnone, Hedin, Casker, Kennedy & Drake, Architects & Landscape Architects, P.C. [Habiterra Assoc.], 5 NY3d 514 [2005], with Estate of Ungar v Palestinian Auth., 44 AD3d 176 [2007]). Concur—Tom, J.P., Saxe, Catterson, Renwick and DeGrasse, JJ.