Carven Associates a/k/a Carvan Associates, et al., Respondents, v. American Home Assurance Corp., Appellant. v. American Pecco Corporation, et al., Third-Party Defendants, and Delro Industries, Inc., Charles V. Castaldo Construction Corp., Northberry Concrete Corp., and Litton Systems, Inc., Third-Party Appellants.

84 N.Y.2d 927, 644 N.E.2d 1368, 620 N.Y.S.2d 812 (1994).
November 29, 1994

Andrew C. Jacobson, for appellant American Home Assurance.
David B. Hamm, for appellant Delro Industries.
Donald D. Brown, Jr., for appellant Litton Systems.
Edward J. Guardaro, for appellant Northberry Concrete.
Dennis T. D'Antonio, for respondent.

MEMORANDUM:

The order of the Appellate Division should be reversed, without costs, and the order of Supreme Court dismissing plaintiffs' complaint reinstated. The certified question should be answered in the negative.

In the singular circumstances presented by this appeal we conclude that Supreme Court properly exercised its discretion to dismiss the complaint and the third party complaint, even after its previous denial of defendant American Home's motion had been affirmed by the Appellate Division, First Department (173 AD2d 369). A subsequent order of the Appellate Division, Second Department (175 AD2d 790), determined that a prior action by plaintiffs based upon the same events as the present action had been dismissed for their willful and repeated refusal to obey court-ordered disclosure and accordingly, plaintiffs were not entitled to reinstitute their action against defendant (see, CPLR 205[a]).

* * * * * * * * * * * * * * * *

Order reversed, without costs, order of Supreme Court dismissing plaintiffs' complaint reinstated and certified question answered in the negative, in a memorandum. Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Levine and Ciparick concur. Judge Smith took no part.