Jelicks v. Camacho

Appellate Division of the Supreme Court of New York

Jelicks v. Camacho

290 A.D.2d 535, 736 N.Y.S.2d 631, 2002 N.Y. App. Div. LEXIS 772

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

DecidedJanuary 28, 2002

StatusPublished

Cited by2 cases

This text of 290 A.D.2d 535 (Jelicks v. Camacho) 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

Jelicks v. Camacho, 290 A.D.2d 535, 736 N.Y.S.2d 631, 2002 N.Y. App. Div. LEXIS 772 (N.Y. Ct. App. 2002).

Pincite

Opinion

In an action to recover damages for personal injuries, etc., the plaintiffs appeal (1), as limited by their brief, from so much of an order of the Supreme Court, Richmond County (Ponterio, J.), dated March 27, 2001, as, upon reargument and renewal of a prior order of the same court dated October 12, 2000, granting the defendant’s motion for summary judgment dismissing the complaint on the ground that the injured plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d), adhered to the prior [536]*536determination, and (2) from an order of the same court, dated July 5, 2001, which denied their motion for reargument.

Ordered that the appeals are dismissed, with costs.

It is well settled that a litigant may not raise any issue on a subsequent appeal that was raised, or could have been raised, on an earlier appeal which was dismissed for lack of prosecution (see, Bray v Cox, 38 NY2d 350). Here, the plaintiffs appealed from a prior order of the Supreme Court, Richmond County, dated October 12, 2000, which granted the defendant’s motion for summary judgment dismissing the complaint on the ground that the injured plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). That appeal (App Div Docket No. 2000-10238) was dismissed by decision and order of this Court dated May 30, 2001, for failure to prosecute. The dismissal for lack of prosecution bars the instant appeal which raises issues which could have been raised on the prior appeal (see, Rubeo v National Grange Mut. Ins. Co., 93 NY2d 750; Bray v Cox, supra).

Moreover, the appeal from the order dated July 5, 2001, must be dismissed as no appeal lies from an order denying a motion for reargument (see, Weissberger v Ashikari, 278 AD2d 409). Florio, J.P., S. Miller, Friedmann, Adams and Prudenti, JJ., concur.

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In an action to recover damages for personal injuries, etc., the plaintiffs appeal (1), as limited by their brief, from so much of an order of the Supreme Court, Richmond County (Ponterio, J.), dated March 27, 2001, as, upon reargument and renewal of a prior order of the same court dated October 12, 2000, granting the defendant’s motion for summary judgment dismissing the complaint on the ground that the injured plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d), adhered to the prior [536]*536determination, and (2) from an order of the same court, dated July 5, 2001, which denied their motion for reargument.

Ordered that the appeals are dismissed, with costs.

It is well settled that a litigant may not raise any issue on a subsequent appeal that was raised, or could have been raised, on an earlier appeal which was dismissed for lack of prosecution (see, Bray v Cox, 38 NY2d 350). Here, the plaintiffs appealed from a prior order of the Supreme Court, Richmond County, dated October 12, 2000, which granted the defendant’s motion for summary judgment dismissing the complaint on the ground that the injured plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). That appeal (App Div Docket No. 2000-10238) was dismissed by decision and order of this Court dated May 30, 2001, for failure to prosecute. The dismissal for lack of prosecution bars the instant appeal which raises issues which could have been raised on the prior appeal (see, Rubeo v National Grange Mut. Ins. Co., 93 NY2d 750; Bray v Cox, supra).

Moreover, the appeal from the order dated July 5, 2001, must be dismissed as no appeal lies from an order denying a motion for reargument (see, Weissberger v Ashikari, 278 AD2d 409). Florio, J.P., S. Miller, Friedmann, Adams and Prudenti, JJ., concur.

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Bluebook (online)

290 A.D.2d 535, 736 N.Y.S.2d 631, 2002 N.Y. App. Div. LEXIS 772, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jelicks-v-camacho-nyappdiv-2002.

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