Santana v. Fischer

Order and judgment, Supreme Court, Bronx County, entered on November 6, 1974 and June 13, 1975, respectively, dismissing plaintiffs’ action, unanimously affirmed, without costs and without disbursements. This is the third action instituted by the plaintiff, each action seeking damages for the same injuries. The first action was aborted after a preclusion order was obtained. In the second action nothing other than a summons was served. A motion to dismiss this third action pursuant to CPLR 3211 (subd [c], par 4), on the grounds of another action pending, was properly granted by Special Term. Plaintiff cannot now institute this suit and thereby circumvent the effect of the prior outstanding order of preclusion (cf. Palmer v Fox, 28 AD2d 968). Concur—Stevens, P. J., Markewich, Murphy, Lupiano and Lane, JJ.