Colon v. New York City Health

Judgment, Supreme Court, New York County (Mi*292chael Dontzin, J.), entered on August 4, 1989, which dismissed the complaint pursuant to CPLR 3211 (a) (5), unanimously affirmed, without costs. The appeal from the order of the same court entered on or about July 24, 1989 is unanimously dismissed, without costs, as superseded by the appeal from the judgment entered thereon.

The prior order dismissing plaintiff’s complaint alleging medical malpractice was tantamount to an order of preclusion for plaintiff’s failure to comply with various discovery demands or to file a certificate of merit. That this was the court’s intent is evident from the transcript and the underlying decision. Accordingly, the dismissal was on the merits and the IAS court properly dismissed the re-served complaint on the ground that it was nothing more than an attempt by plaintiff to circumvent the court’s original order and judgment. (See, Anteri v NRS Constr. Corp., 148 AD2d 563, 564-565.) Concur—Murphy, P. J., Sullivan, Milonas and Smith, JJ.