DECISION ORDER
ORDERED that the order is reversed, on the law, without costs or disbursements, the motion is denied, and the complaint is reinstated.
A nearly identical action to the instant action was previously dismissed for the plaintiff's failure to prosecute. A dismissal of a prior action between the same parties for failure to prosecute is not a dismissal on the merits and does not bar a second action based upon the same facts unless the order specifies otherwise (see Mays v. Whitfield, 282 A.D.2d 721; San Filippo v. Adler, 278 A.D.2d 402; Medalie v. Jacobson, 120 A.D.2d 652; Lewin v. Yedvarb, 61 A.D.2d 1025). Furthermore, "dismissal of an action by being marked off the trial calendar is not a dismissal on the merits" (Gallo v. Teplitz Tri-State Recycling, 254 A.D.2d 253, 254).
The order dismissing the prior action did not indicate that it was on the merits or with prejudice, and thus, the doctrine of res judicata is not applicable.
The defendant's remaining contentions are without merit.
SANTUCCI, J.P., SMITH, H. MILLER and ADAMS, JJ., concur.