Engel v. Aponte

51 A.D.2d 989, 380 N.Y.S.2d 739, 1976 N.Y. App. Div. LEXIS 11736

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 8, 1976
• Status: Published

Opinion

In a conversion action, defendants appeal (1) from an order of the Supreme Court, Kings County, dated January 16, 1975, which, inter alia, denied their separate motions for summary judgment, and (2) as limited by their briefs, from so much of a further order of the same court, dated April 10, 1975, as, upon reargument, adhered to the prior determination. Appeal from the order dated January 16, 1975 dismissed. That order was superseded by the order made upon reargument. Order dated April 10, 1975 reversed insofar as appealed from, motions granted, and complaint dismissed. Appellants are awarded one bill of costs jointly to cover both appeals. The failure of the plaintiff to appeal from a prior order of' the Supreme Court which (1) granted summary judgment to defendant Matzner Publications, Inc., and (2) granted defendant Aponte’s motion to dismiss the complaint therein, with prejudice, bars further litigation of the same facts. Until reversed, an order granting summary judgment is as conclusively determinative of all issues in a case as is a judgment after trial (Klein v Grass & Son, 18 AD2d 1085). Cohalan, Acting P. J., Margett, Damiani, Rabin and Hawkins, JJ., concur.