The complaint in the instant action alleges fifty allegations of fact in support of nine causes of action. The actions are premised on the moving defendants involvement in causing damage to plaintiff's building by their activity on an adjacent property. There is no dispute that the earlier action and instant action are based on the same alleged conduct of the movant-defendants against the plaintiff. The affirmation of plaintiff's counsel in opposition to the instant motion admits same and indeed describes the instant action as a recommencement of the earlier action.

Justice Silverman's order, dated July 25, 2005, under index number 19299/04, resolved three motions. The order stated that the complaint would be dismissed against all parties unless plaintiff fully complied with certain demands of the defendants within forty five days of the order. Justice Partnow's order, dated January 31, 2006, under index number 19299/04 pertained to motion sequence number 6, 7 and 8 and set forth the following.

"Hakiman's motion to dismiss, dated October 31, 2005; the Negev defendants' cross-motion to dismiss, dated November 28, 2005; and Korsandi's cross-motion to dismiss, dated November 10, 2005 are all granted in their entirety pursuant to the July 25, 2005 dismissal order of Justice Silverman. Plaintiff submitted no opposition to the instant motions. The complaint is dismissed against all defendants in its entirety. "

Defendant Edmond Hakimian, P.E., referenced their motion for an order pursuant to CPLR 3126 dismissing plaintiff's complaint as the basis for the notice of entry of judgment. That judgment attached as exhibit G in defendant movants' motion papers references Justice Partnow's order dated January 31, 2006 and provides that the complaint is dismissed with prejudice as against all defendants.

CPLR § Rule 2214 provides as follows:

Motion papers; service; time. (a) Notice of motion. A notice of motion shall specify the time and place of the hearing on the motion, the supporting papers upon which the motion is based, the relief demanded and the grounds therefor. Relief in the alternative or of several different types may be demanded.

CPLR § Rule 3211(a)(5) provides in pertinent part as follows:

A party may move for judgment dismissing one or more causes of action asserted against him on the ground that the cause of action may not be maintained because of arbitration and award, collateral estoppel, discharge in bankruptcy, infancy or other disability of the moving party, payment, release, res judicata, statute of limitations, or statute of frauds.

The instant motion is for an accelerated judgment of dismissal pursuant to CPLR §3212. Defendant-movants contend that the instant action is barred on two grounds. They contend that the dismissal of the earlier action was with prejudice and bars the instant identical action applying the doctrine of res judicata. They contend, in the alternative, that the instant action isuntimely commenced.

Defendant-movants instant motion papers do not contain a copy of the motion papers which Justice Silverman considered in issuing the order dated July 25, 2005. In the absence of the underlying motion papers, this court cannot determine the basis for the movants' request for dismissal of the complaint. Justice Silverman's order, dated July 25, 2005 directed the dismissal of the complaint if plaintiff did not comply with some of the defendants' various demands within [*2]forty five days of the order. The order did not state that plaintiff was precluded or that the dismissal would be with prejudice. Justice Partnow referenced Justice Silverman's order as the basis for his own order, dated January 31, 2006, dismissing the complaint. Justice Partnow's order also did not state that the complaint was dismissed with prejudice. Furthermore, it was granted on default.

It is noted that Justice Partnow's order referred to Hakiman's motion to dismiss, the Negev defendants' cross-motion to dismiss, and Korsandi's cross-motion to dismiss. It is also noted that neither defendant Albert Korsandi or Edmond Hakimian are movants in the instant motion.

On a motion for summary judgment, the movant must establish his or her cause of action or defense sufficient to warrant a court to direct judgment in his or her favor as a matter of law (Alvarez v. Prospect Hospital, 68 NY2d 320 [1986]). The party opposing the motion must then produce proof in admissible form sufficient to necessitate a trial as to material issues of fact (Laecca v. New York University, 7 AD3d 415 [1st Dept. 2004]; see also Rebecchi v. Whitmore, 172 AD2d 600 [2nd Dept. 1991]. Furthermore, to grant a motion for summary judgment, it must clearly appear that no material issue of fact is presented. The burden upon the court when deciding this type of motion is not to resolve issues of fact or credibility, but rather to determine whether indeed any such issues of fact exist (Barr v. County of Albany, 50 NY2d 247 [1980]; see also Kolivas v. Kirchoff, 14 AD3d 493 [2nd Dept. 2005]).

Under res judicata, or claim preclusion, a valid final judgement bars future actions between the same parties on the same cause of action (Parker v. Blauvelt Volunteer Fire Co., Inc., 93 NY2d 343-347 [1999]). As a general rule, "[w]here a dismissal does not involve a determination on the merits, the doctrine of res judicata does not apply" Wilson v. NYCHA, 15 AD3d 572 [2nd Dept. 2005] citing Sclafani v. Storybook Homes, 294 AD2d 559, 559-560 [2nd Dept. 2002]).

Where a plaintiff's noncompliance with a disclosure order does not result in a dismissal with prejudice, or an order of preclusion or summary judgement in favor of defendant so as to effectively close plaintiff's proof, dismissal resulting from the noncompliance is not a merits determination so as to bar commencement of a second action (Daluise v. Sottile, 40 AD3d 801 [2nd Dept. 2007] citing Maitland v. Trojan Elec. & Mach. Co., 65 NY2d 614, 61-616 [1985]).

Although the aforementioned judgement referencing Justice Partnow's order stated that the dismissal of the complaint was with prejudice, there was nothing in Justice Partnow's order directing a dismissal with prejudice. A "written order [or judgment] must conform strictly to the court's decision" and in the event of an inconsistency between a judgement and a decision or order upon which it is based, the decision or order controls (Spier v. Horowitz,16 AD3d 400-401 [2nd Dept. 2005]). Applying this principle of law , the court finds the judgment and order are inconsistent and will disregard the characterization of the dismissal as with prejudice.

The apparent intent of Justice Silverman's order was to induce plaintiff to comply with the defendants' various discovery demands or face the extreme sanction of dismissal. Defendant-movants, however, did not include their original motion papers with the instant motion. Consequently, this court cannot ascertain the factual and procedural basis utilized by the movants for the extreme remedy of dismissal. Was it a summary judgment motion attacking the merits of plaintiff's claim? Was it a motion seeking an order of preclusion or was it merely a motion for sanction of dismissal? Neither Justice Silverman nor Justice Partnow's orders states [*3]that the dismissal is based on motion for summary judgment or for a preclusion order in favor of the moving defendant. Therefore, defendant-movants have not demonstrated that the dismissal of the earlier action was a determination on the merits so as to bar commencement of a second action.

The court now turns to defendant-movants' alternative basis for dismissal. A defendant who seeks dismissal of a complaint pursuant to CPLR§ 3211(a)(5) on the grounds that it is barred by the statute of limitations bears the initial burden of proving, prima facie, that the time in which to commence an action has expired. The burden then shifts to the plaintiff to aver evidentiary facts establishing that his or her cause of action falls within an exception to the statute of limitations, or raising an issue of fact as to whether such an exception applies (LaRocca v. DeRicco, 39 AD3d 486-487 [2nd Dept. 2007]). In order to make a prima facie showing, the defendant must establish, inter alia, when the cause of action accrued (see Swift v. New York Medical Coll., 25 AD3d 686 [2nd Dept. 2006]).

The affirmation of defendant-movants' counsel sets forth five allegations, numbered ten through fifteen, in support of the application to dismiss the complaint based on the statute of limitations. The allegations are as follows. Plaintiff's complaint shows that the action accrued in April of 2003. Defendant Negev was served with the complaint on May 26, 2006 and again on June 19 and July 26, 2006. Defendants Ilan Cohen, Joseph Cohen, Abe Cohen, Robert Cohen and Negev Equities, LLC were served on May 26 and again on June 19, 2006. Finally, they allege that defendants Miriam Realty Corporation, Miriam Realty, LLC, Miriam Cohen and Keep Izzy Busy were not served the complaint in the instant action but have nevertheless appeared.Also submitted was an affidavit of Joseph Cohen, a principal of Negev, LLC. Mr. Cohen alleged, in pertinent part, that Negev, LLC, hired individuals to construct an eight family multiple dwelling at a property known as 346 22nd Street, Brooklyn, New York. He further alleges that excavation and digging of the lot was completed on or before May 14, 2003.

Defendant-movants must make a prima facie showing that the plaintiff commenced the instant action after the time to commence each of the nine causes of action had expired. Necessarily, the movant must show the accrual date and expiration date of each of the plaintiff's nine causes of action. Also necessary, is a showing of the applicable statute of limitations being applied to each. The movants contend that the accrual date of the actions is on or during the month of April 2003. They also state that the statute relied upon is CPLR § 201. CPLR §201 provides that an action must be commenced within the time specified in the article unless a different time is prescribed by law or a shorter time is prescribed by written agreement.

Defendant-movants do not state what particular limitations period they were relying upon for any one of the nine causes of action in the complaint. Without advising the court of the limitation period that they are relying upon, the movant cannot and have not met their burden to show that the date the instant action was commenced was untimely.

In light of the foregoing, it is unnecessary for the court to address the specific allegation that some of the defendant-movants were not served with process in this case and yet appeared. There was no information as to how and when they appeared. This is relevant in determining when the action is deemed commenced as to them. However, here, the issue is not reached because of the aforementioned deficiencies in the movants' papers.

Defendant-movants motion to dismiss the complaint on the grounds of res judicata and on the grounds that the action is untimely is denied. [*4]

The foregoing constitutes the decision and order of this court.

J.S.C.