Alfieri v. Empire Beef Co.

Appeals from a judgment of the Supreme Court, Monroe County (Thomas A. Stander, J.), entered November 1, 2004 in a breach of contract action. The judgment awarded plaintiff Joseph Alfieri the sum of $649,890.72 and awarded plaintiff Salvatore DiPerna the sum of $649,890.72 as against defendant Statewide Food Service, Inc. It is hereby ordered that said appeals be and the same hereby are unanimously dismissed without costs. Memorandum: Defendants Empire Beef Co., Inc. (Empire) and Statewide Food Service, Inc. (Statewide) each appeal from a judgment awarding plaintiffs a sum of money as against Statewide. That judgment was entered pursuant to an order granting plaintiffs’ cross motion for partial summary judgment against Statewide. The record establishes that Empire had responded to the cross motion by stating that it took no position in support of or in opposition to the cross motion. Empire therefore is not aggrieved by the judgment, and we dismiss its appeal from it (see Aronov v Regency Gardens Apts. Corp., 34 AD3d 404 [2006]; Whiteman v Yeshiva & Mesivta Torah Temimah, 255 AD2d 378 [1998]; see generally CPLR 5511). We also dismiss Statewide’s appeal from the judgment. Statewide took an appeal from the order granting plaintiffs’ cross motion for partial summary judgment, but the appeal was subsequently deemed abandoned and dismissed pursuant to 22 NYCRR 1000.12 (b) based upon Statewide’s failure to perfect it. “[A] prior dismissal for want of prosecution acts as a bar to a subsequent appeal as to all questions that were presented on the earlier appeal” (Bray v Cox, 38 NY2d 350, 353 [1976]). We decline to exercise our discretion to review the merits of Statewide’s appeal (see Combier v Anderson, 34 AD3d 333 [2006]; Palmieri v Windowrama, Inc., 277 AD2d 210 [2000]; see generally Faricelli v TSS Seedman’s, 94 NY2d 772, 774 [1999]; Rubeo v National Grange Mut. Ins. Co., 93 NY2d 750, 756 [1999]). Present—Scudder, P.J., Centra, Lunn, Fahey and Peradotto, JJ.