Kimble v. Caraballo

243 A.D.2d 610, 668 N.Y.S.2d 894, 1997 N.Y. App. Div. LEXIS 10256

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 20, 1997
• Status: Published

Opinion

In an action to recover damages for personal injuries, the defendant appeals, as limited by her brief, from so much of an order of the Supreme Court, Queens County (Schmidt, J.), dated November 8, 1996, as, upon reargument, adhered to a prior order of the same court, dated September 6, 1996, denying her motion for summary judgment dismissing the complaint.

Ordered that the appeal is dismissed, with costs.

The order appealed from is not reviewable. A prior appeal from the order dated September 6, 1996, denying the defendant’s motion for summary judgment was dismissed by decision and order on motion of this Court dated May 12, 1997 (App Div Docket No. 96-09194), for failure to perfect the appeal. The dismissal of that appeal for want of prosecution was an adjudication on the merits with respect to all issues which could have been reviewed therein, and the defendants are therefore precluded from obtaining appellate review of those issues at this time (see, Bray v Cox, 38 NY2d 350, 355; Tepper v Furino, 239 AD2d 405; Feeley v Midas Props., 221 AD2d 314, 315). Mangano, P. J., Copertino, Joy, Florio and Luciano, JJ., concur.