Gurbacki v. Gurbacki

—Judgment unanimously affirmed without costs. Memorandum: Following plaintiff’s commencement of this divorce action in December 1994, the parties entered into a written property settlement agreement resolving most of the issues of property distribution. At the parties’ request, Supreme Court determined the issue of child support and the distribution of bank accounts and pension funds by order entered August 5, 1998. Defendant appealed from that order, contending that the court erred in its distribution of pension funds, and we modified the order (Gurbacki v Gurbacki, 270 AD2d 807). Plaintiff did not cross-appeal from that order. In now appealing from the judgment of divorce, plaintiff seeks review of that prior order concerning child support and the distribution of bank accounts. CPLR 5501 (a) (1) provides that an appeal from a final judgment brings up for review “any non-final judgment or order which necessarily affects the final judgment * * * provided that such non-final judgment or order has not previously been reviewed by the court to which the appeal is taken.” Even assuming, arguendo, that the August 5, 1998 order was a non-final order, we conclude that the judgment herein must be af 894 firmed because the prior order has previously been reviewed by this Court (see, CPLR 5501 [a] [1]; see also, Matter of Jackson [Liberty Mut. Ins. Co.], 54 AD2d 539). Because the only issues raised in this appeal from the judgment are issues that were decided in the prior order, the judgment must be affirmed. (Appeal from Judgment of Supreme Court, Erie County, O’Donnell, J. — Matrimonial.) Present — Pigott, Jr., P. J., Hayes, Wisner, Scudder and Balio, JJ.