Felix v. Herby Realty Corp.

—In an action to recover damages for personal injuries, the defendant appeals from a judgment of the Supreme Court, Kings County (Yoswein, J.), entered February 25, 1997, which, upon a jury verdict, is in favor of the plaintiff and against it in the principal sum of $369,000. Ordered that the appeal is dismissed, with costs to the plaintiff. After the conclusion of the trial, the defendant moved to set aside the verdict as to damages. That motion was denied by or [432] der dated July 26, 1996, and the defendant took an appeal from that order. Thereafter, the appeal appeared on the dismissal calendar, and was dismissed for want of prosecution by decision and order of this Court dated May 12, 1997. The dismissal for want of prosecution constituted an adjudication “on the merits of all claims which could have been litigated had the appeal been timely argued of submitted” (Bray v Cox, 38 NY2d 350, 355). Accordingly, this appeal, in which the defendant contends that the damage award was excessive, is dismissed (see, Kimble v Carabello, 243 AD2d 610; Chemical Bank v Zisholtz, 227 AD2d 580). Rosenblatt, J. P., O’Brien, Ritter and Goldstein, JJ., concur.