On this record, we agree that res judicata is not available as a defense to plaintiffs' second action, alleging essentially the same cause of action for negligence interposed in the first complaint, which was dismissed for failure to prosecute pursuant to CPLR 3216 (a). The dismissal was not on the merits and, since the applicable Statute of Limitations was tolled during the infancy of the plaintiff, this did not constitute a bar to commencement of a new action for the same...
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