dissents in a memorandum as follows: After reviewing the record, I find Special Term erred. Accordingly, I would reverse and grant defendant’s motion for summary judgment to dismiss the instant complaint, upon the basis of the doctrine of res judicata.
At approximately 3:30 p.m. on June 15, 1979, Vereese Holley (infant), who was approximately 10 years old at that time, allegedly severely injured his head, inter alia, when he fell through a window in a stairwell, located on the second floor in 1311 College Avenue, Bronx County. The defendant Mandate Realty Corp. owned the premises where this alleged accident took place.
Subsequently, in September 1980, Mr. Cornelius Holley (Mr. Holley), who is the infant’s father, commenced, on behalf of the infant and himself, an action against defendant to recover damages for the infant’s injuries. The plaintiffs, in their 1980 complaint, alleged, inter alia, that the infant was injured as a *207result of the negligence of the defendant in maintaining the subject premises. In response, defendant served its answer and demanded a bill of particulars, which plaintiffs furnished in September 1981.
Following receipt of this bill of particulars, counsel for defendant, in a letter dated October 5, 1981 to counsel for plaintiffs, requested that the infant submit to a physical examination. The plaintiffs did not comply with this request. Thereafter, the defendant moved three times for a court order to obtain that relief.
As a result of defendant’s motions, the plaintiffs’ attorneys were directed, on three separate occasions, by Supreme Court Justices Alfred J. Callahan (order dated March 10, 1982), Irwin Silbowitz (order dated June 10, 1982), and, Anthony J. Mercorella (order dated September 15, 1982), to submit the infant plaintiff for a physical examination. It is undisputed that plaintiffs failed to obey those orders.
On January 12, 1983, the defendant served counsel for the plaintiffs with a 90-day notice, pursuant to CPLR 3216. Thereafter, when the plaintiffs, for approximately five months, took no steps to proceed with the prosecution of their action, the defendant moved pursuant to CPLR 3216, for an order of dismissal. By order dated August 1, 1983, Justice Callahan, in substance, conditionally granted defendant’s motion to dismiss for failure to prosecute, unless plaintiffs placed this matter "upon the trial calendar within 60 days after service of a copy of this order with notice of entry”. This conditional dismissal order of Justice Callahan specifically makes reference to Justice Mercorella’s order, mentioned supra, which precluded plaintiffs from filing a note of issue until the physical examination was accomplished. In pertinent part, Justice Callahan stated: "Justice Mercorella’s decision did not intend that this action could be kept off the calendar indefinitely or until the physical examination of the infant was held as such construction would render the rules of procedure in the prosecution of infant’s actions substantially different from other actions. The decision was obviously based upon the holding of a physical within a reasonable time.”
In view of the fact that plaintiffs, subsequent to their counsel being served with Justice Callahan’s August 1, 1983 order, did not respond to it, once again defendant moved to dismiss the action. Thus, by order dated February 2, 1984, Justice Wallace R. Cotton unconditionally granted that motion, and dismissed the complaint, due to plaintiffs’ failure to *208comply with the subject order of Justice Callahan. In pertinent part, Justice Cotton stated:
"The defendant * * * having moved this Court for an order dismissing plaintiff’s [sic] complaint outright for failure to comply with Justice Callahan’s order dated August 1, 1983
* * *
"ordered, that the said motion be granted and it is further
"ordered, that the within action be and the same is hereby unconditionally dismissed against defendant * * * and the Clerk is directed to enter judgment accordingly”.
The record unequivocally indicates that plaintiffs neither submitted any opposition to the motion submitted to Justice Cotton nor did they appeal his disposition.
Thereafter, on or about April 14, 1984, plaintiffs commenced, by the service of a summons and complaint, a second action against defendant concerning the infant’s alleged accident of June 15, 1979.
Based upon my comparison of the dismissed first 1980 complaint with this second 1984 complaint, I find that the first and second complaints: contain the same allegations of negligence against defendant; contain the same claims of injuries by the infant plaintiff; and, seek the same amount of damages for the infant’s injuries.
After answering this second complaint, the defendant moved, pursuant to CPLR 3212, for summary judgment upon the ground, inter alia, of the doctrine of res judicata. Plaintiffs opposed defendant’s motion, on the grounds that, inter alia, Justice Cotton’s order dismissing the first complaint was allegedly without prejudice and not on the merits. Special Term (Irwin Silbowitz, J.), denied this motion.
I disagree.
As mentioned supra, Justice Cotton unconditionally dismissed plaintiffs’ first complaint, pursuant to CPLR 3216, for failure to prosecute, and directed the clerk to enter a judgment to that effect.
Almost 20 years ago, the Court of Appeals held in Headley v Noto (22 NY2d 1, 4 [1968]), in pertinent part, that: "It certainly should be within the power of a trial court to dispose of a case 'on the merits and with prejudice’ where it has been adequately demonstrated that a plaintiff unreasonably neglected to prosecute an action. It is well recognized that the power to control its calendar is a vital consideration in the administration of the courts. (Cf. Thomas v. Melbert Foods, 19 N Y 2d 216.) Indeed, a litigant should be prevented from *209repeatedly bringing his claim into court, thereby harassing the other parties involved and clogging the court’s calendar”. More than a decade later, in Jones v Maphey (50 NY2d 971, 973 [1980]), a unanimous Court of Appeals cited with approval the holding in Headley v Noto (supra). Even though one of the plaintiffs was an infant, the Court of Appeals decided in Jones v Maphey (supra, at p 973) that it was not an abuse of discretion for Special Term to dismiss the complaint on the merits, pursuant to CPLR 3216, "in view of plaintiffs’ prolonged neglect of their case”.
Analysis of Justice Cotton’s order indicates that neither the words "on the merits” nor the words "with prejudice” nor the words "without prejudice” are contained within it. However, Justice Cotton did use the word "unconditionally” in his order to describe the dismissal of the action, and did direct the clerk to enter a judgment to that effect. In my opinion, based upon the facts of the instant case, it would be to exalt form over substance to argue that Justice Cotton’s use of the word "unconditionally” did not clearly imply that his dismissal of the action was not on the merits (emphasis added).
- Moreover, I find that the facts, set forth as follows, indicate a persistent pattern of neglect in the prosecution of this case by either the plaintiffs or their counsel: the plaintiffs failed to comply with three orders to produce the infant plaintiff for a physical examination; the plaintiffs also failed to comply with an order to place the 1980 action on the Trial Calendar; the counsel for the plaintiffs did not oppose defendant’s motion to dismiss the 1980 complaint, which motion was granted by Justice Cotton; and, the counsel for the plaintiffs did not appeal Justice Cotton’s disposition of that motion.
In their affirmation, dated January 30, 1985, submitted in opposition to defendant’s motion for summary judgment to dismiss the second 1984 complaint, the counsel for plaintiffs assert, at page 2 of that affirmation, in pertinent part: "Plaintiffs’ counsel were unable to produce the infant for said physical examination as the plaintiff had moved from this State and had not left a number or forwarding address with us. Numerous attempts to contact them by mail, telephone and telegrams were unsuccessful. (Copies of Three (3) separate telegrams addressed to the plaintiffs are annexed hereto and made a part hereof as Exhibit 'B’[)]’\
I have examined the three telegrams referred to supra, and I find that each one was sent in 1982. Other than this 1982 evidence of attempts to contact plaintiffs, I am unable to find any objective evidence in the record on appeal that supports *210the contention of counsel for the plaintiffs that they have made any further effort to contact plaintiffs. For example, although counsel for the plaintiffs mention attempts to contact plaintiffs by telephone and the mail, these counsel do not set forth either a list of the dates of such telephone calls or copies of any letters sent to plaintiffs.
The mere fact that one of the plaintiffs herein is an infant does not mean that the complaint cannot be dismissed on the merits for failure to prosecute the action, when, as in the instant case, there is "prolonged neglect of [the] case” (Jones v Maphey, supra, at p 973).
In deciding this case, I cannot ignore the obvious fact that, by commencing the second action in 1984, the plaintiffs are attempting to circumvent two orders of preclusion, and a dismissal order, in which Justice Cotton directed the clerk to enter judgment to that effect, which orders were all addressed to the complaint in the first action. As mentioned supra, in 1982, Justices Silbowitz and Mercorella directed that the infant plaintiff be produced by plaintiffs for a physical examination. Inspection of those two orders indicates that: (a) Justice Silbowitz’s order, dated June 10, 1982, stated, in pertinent part, that: "plaintiffs are precluded from testifying as to the physical injuries allegedly sustained in this incident unless they comply with the order [directing that infant plaintiff be examined]” (emphasis added); and, (b) Justice Mercorella’s order, dated September 15, 1982, stated, in pertinent part, that the infant plaintiff must: "appear for physical examination at the office of defendant’s doctor at least 10 days prior to filing a note of issue” (emphasis added).
In view of these orders of preclusion, I find applicable this court’s unanimous decision in Strange v Montefiore Hosp. & Med. Center (91 AD2d 507 [1st Dept 1982], affd 59 NY2d 737 [1983]). This court stated, in pertinent part, in the Strange case: "An earlier medical malpractice action was dismissed on a grant of summary judgment based on a preclusion order which had been granted because of plaintiff’s failure to serve a bill of particulars. The order of dismissal did not state that it was 'on the merits’. No appeal was taken from that determination. Instead, five months later, plaintiff commenced a second malpractice action, identical to the first. Defendant’s answer interposed the affirmative defenses of Statute of Limitations and res judicata. Special Term denied its motion to dismiss on the [ground of res judicata] * * * We disagree * * * [T]he motion turns on res judicata considerations. In a similar set of circumstances (Barrett v Kasco Constr. Co., 56 *211NY2d 830, 831), the Court of Appeals has held that 'although the prior judgment * * * does not specifically recite that it is "on the merits”, that judgment should be given res judicata effect in order to prevent the plaintiff from circumventing the preclusion decree’. We believe that Barrett is dispositive here.”
The facts of the instant case are similar to the facts in the Strange case (supra). For example, in both cases, as mentioned supra: there were preclusion orders; the dismissal orders did not use the words "on the merits”; the respective defendants did not appeal the dismissal orders; a second action was started, which, in substance, contained the same allegations as the first action; and, the defendant in the instant case, like the defendant in the Strange case, asserted the affirmative defense of res judicata in its answer to the second action. Although in the instant case the dismissal order and direction to the clerk to enter judgment to that effect were in response to a motion to dismiss for failure to prosecute, the facts, as set forth supra, leading up to the dismissal order clearly indicate that the conditional preclusion order of Justice Mercorella, mentioned supra, generated it.
In Maitland v Trojan Elec. & Mach. Co. (65 NY2d 614 [1985]), the Court of Appeals held that the doctrine of res judicata does not always bar a plaintiff from commencing a second action, after dismissal of an identical first action, where the order dismissing the first action does not indicate whether it was on the merits. When I compare the instant case to Maitland (supra), I find that the two cases are distinguishable, based upon the fact that preclusion orders, as discussed supra, led to the dismissal of the first action in the instant case, while preclusion orders played no role in the dismissal of the first action in Maitland. Significantly, the Court of Appeals, in its decision in Maitland (supra), emphasized the fact that the presence of preclusion orders can trigger the application of the doctrine of res judicata to bar a second action. In Maitland, the Court of Appeals reaffirmed the principles of the Strange decision (supra). In pertinent part, the Court of Appeals stated in Maitland (supra, at p 615) that: "This is not a case such as Strange v Montefiore Hosp. & Med. Center (59 NY2d 737) where plaintiff’s second action constituted an attempt to circumvent an order of preclusion or summary judgment, the function of which is to effectively foreclose proponent’s offer of proof. (See also, Barrett v Kasco Constr. Co., 56 NY2d 830.)”
The majority contend that allegedly this dissent does not *212address the factor of the infancy of the injured plaintiff. In response, we respectfully refer the majority to the second paragraph of page — of our dissent, where we specifically set forth that the injured infant plaintiff "was approximately 10 years old” at the time of the accident.
Accordingly, defendant’s motion for summary judgment should have been granted.