Order, Supreme Court, New York County (Myriam J. Altman, J.), entered January 24, 1992, granting defendant’s motion and third-party defendants’ cross motions to dismiss plaintiffs’ complaint, reversed, on the law, without costs, the complaint is reinstated, and the case is remanded for further proceedings.
It was error for the IAS Court to grant the motion to dismiss the complaint on the ground of neglect to prosecute, based upon newly discovered evidence. Evidence is defined as that which can be proffered at trial (Fisch, New York Evidence § 1). There is no way that the comments of the Second Department, in the form of dictum, can be viewed in that light. The holding of the Second Department (Carven Assocs. v American Home Assur. Corp. [No. 3], 175 AD2d 790) can only be read as affirmance of a dismissal without prejudice, and thus does not bar resort to CPLR 205 (a) for purposes of commencing a second action. The decision in Maitland v Trojan Elec. & Mach. Co. (65 NY2d 614) does not constitute authority to the contrary.
It was further error for the IAS Court to ignore the law of the case set forth in our prior decision affirming the denial of the motion to dismiss (173 AD2d 369), wherein we viewed the deletion of the words "with prejudice” from the order dismissing the earlier action in Orange County as indicating that such dismissal was not for neglect to prosecute. The IAS Court erred in reading that term of art into the Second Department’s affirmance, despite the absence of a necessary condi-
*105tion precedent to dismissal on such ground (CPLR 3216 [b] [3]). Concur—Murphy, P. J., Wallach and Ross, JJ.