Felix v. Herby Realty Corp.

Appellate Division of the Supreme Court of New York

Felix v. Herby Realty Corp.

248 A.D.2d 431, 668 N.Y.S.2d 944, 1998 N.Y. App. Div. LEXIS 2299

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 9, 1998

StatusPublished

Cited by4 cases

This text of 248 A.D.2d 431 (Felix v. Herby Realty Corp.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Felix v. Herby Realty Corp., 248 A.D.2d 431, 668 N.Y.S.2d 944, 1998 N.Y. App. Div. LEXIS 2299 (N.Y. Ct. App. 1998).

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Opinion

—In an action to recover damages for personal injuries, the defendant appeals from a judgment of the Supreme Court, Kings County (Yoswein, J.), entered February 25, 1997, which, upon a jury verdict, is in favor of the plaintiff and against it in the principal sum of $369,000.

Ordered that the appeal is dismissed, with costs to the plaintiff.

After the conclusion of the trial, the defendant moved to set aside the verdict as to damages. That motion was denied by or[432]*432der dated July 26, 1996, and the defendant took an appeal from that order. Thereafter, the appeal appeared on the dismissal calendar, and was dismissed for want of prosecution by decision and order of this Court dated May 12, 1997. The dismissal for want of prosecution constituted an adjudication “on the merits of all claims which could have been litigated had the appeal been timely argued of submitted” (Bray v Cox, 38 NY2d 350, 355). Accordingly, this appeal, in which the defendant contends that the damage award was excessive, is dismissed (see, Kimble v Carabello, 243 AD2d 610; Chemical Bank v Zisholtz, 227 AD2d 580).

Rosenblatt, J. P., O’Brien, Ritter and Goldstein, JJ., concur.

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—In an action to recover damages for personal injuries, the defendant appeals from a judgment of the Supreme Court, Kings County (Yoswein, J.), entered February 25, 1997, which, upon a jury verdict, is in favor of the plaintiff and against it in the principal sum of $369,000.

Ordered that the appeal is dismissed, with costs to the plaintiff.

After the conclusion of the trial, the defendant moved to set aside the verdict as to damages. That motion was denied by or[432]*432der dated July 26, 1996, and the defendant took an appeal from that order. Thereafter, the appeal appeared on the dismissal calendar, and was dismissed for want of prosecution by decision and order of this Court dated May 12, 1997. The dismissal for want of prosecution constituted an adjudication “on the merits of all claims which could have been litigated had the appeal been timely argued of submitted” (Bray v Cox, 38 NY2d 350, 355). Accordingly, this appeal, in which the defendant contends that the damage award was excessive, is dismissed (see, Kimble v Carabello, 243 AD2d 610; Chemical Bank v Zisholtz, 227 AD2d 580).

Rosenblatt, J. P., O’Brien, Ritter and Goldstein, JJ., concur.

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Bluebook (online)

248 A.D.2d 431, 668 N.Y.S.2d 944, 1998 N.Y. App. Div. LEXIS 2299, Counsel Stack Legal Research, https://law.counselstack.com/opinion/felix-v-herby-realty-corp-nyappdiv-1998.

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