King v. Compass Retail

226 A.D.2d 263, 641 N.Y.S.2d 269, 1996 N.Y. App. Div. LEXIS 3988

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 23, 1996
• Status: Published

Opinion

Order, Supreme Court, Nassau County (Ralph Franco, J.), entered February 7, 1995, which granted defendants-respondents’ motions for summary judgment dismissing the complaint and all cross claims as against them, unanimously affirmed, without costs.

The record shows that plaintiffs filed a notice of appeal from the prior order of October 20, 1994, but that the appeal was automatically dismissed for failure to perfect (22 NYCRR 670.8 [e], Ch]). Since such a dismissal is tantamount to an affirmance, issues that could have been raised on the dismissed appeal may not be reviewed on the instant appeal (Montalvo v Nel Taxi Corp., 114 AD2d 494, lv denied and dismissed 68 NY2d 643). Limiting our review to the order of February 7, 1995, we agree with the IAS Court that the effect of the prior orders was to preclude plaintiffs from presenting a prima facie case of negligence as against defendants Compass Retail and Equitable Life, and to similarly preclude plaintiffs as against defendant G.S.G.S.&B. in the event they failed, as they did, to serve a further bill of particulars, and that such defendants are therefore entitled to summary judgment. Concur—Rosenberger, J. P., Wallach, Rubin, Kupferman and Tom, JJ.