General
Warren Seeley et al., Respondents, v. Dallao Restaurant, Inc., Doing Business as Horseblock Inn, Respondent, Francis Harvey et al., Appellants, et al., Defendants
271 A.D.2d 677708 N.Y.S.2d 625·New York Supreme Court, Appellate Division·2000·NY
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Opinion
Warren Seeley et al., Respondents, v Dallao Restaurant, Inc., Doing Business as Horseblock Inn, Respondent, Francis Harvey et al., Appellants, et al., Defendants.
[708 NYS2d 625]
[MAJORITY]
—In an action to recover damages for personal injuries, etc., the defendant Francis Harvey, appeals, as limited by his brief, from so much of an order of the Supreme Court, Suffolk County (Seidell, J.), dated February 1, 1999, as, upon reargument, adhered to a determination in a prior order of the same court dated June 4, 1998, denying that branch of his motion which was to dismiss the cross claim of the defendant Dallao Restaurant, Inc., d/b/a Horseblock Inn insofar as asserted against him. The defendants Thomas J. Sorady and Kenneth Harvey separately appeal from the same order.
Ordered that the appeals by Thomas J. Sorady and Kenneth Harvey are dismissed, for failure to perfect the same (see, 22 NYCRR 670.8 [a]); and it is further, .
Ordered that the appeal by Francis Harvey is dismissed; and it is further,
Ordered that the defendant Dallao Restaurant, Inc., is awarded one bill of costs, payable by the appellant Francis Harvey.
The order appealed from, which granted the motion of the appellant Francis Harvey for reargument and adhered to a determination in a prior order dated June 4, 1998, should be dismissed. Harvey previously appealed from the order dated June 4, 1998 (see, App Div Docket No. 1998-06121), but that appeal was dismissed by decision and order on motion of this Court dated March 23, 1999, for lack of prosecution (see, 22 NYCRR 670.8 [h]). The dismissal constituted an adjudication on the merits with respect to all issues which could have been reviewed therein, and Harvey is therefore precluded from obtaining appellate review of those issues at this time (see, Bray v Cox, 38 NY2d 350; Lopez v City of New York, 264 AD2d 819; Felix v Herby Realty Corp., 248 AD2d 431; Kimble v Caraballo, 243 AD2d 610; Tepper v Furino, 239 AD2d 405). Gold-stein, J. P., Florio, Feuerstein and Schmidt, JJ., concur.