¶ Order affirmed, with costs.
¶ The dismissal of plaintiff's prior action pursuant to CPLR 3012 (subd [b]) did not constitute a dismissal on the merits and thus plaintiff is entitled to institute a second action based on the same facts for identical relief (see Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3012:13, p 591). Moreover, since plaintiff instituted the second action prior to the expiration of the applicable Statute...
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