Weissberger v. Ashikari

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Westchester County (Nastasi, J.), entered September 14, 1999, denying her motion, denominated as one to renew and/or reargue but which was, in fact, one for reargument of the defendants’ respective motions, to dismiss the complaint, which were granted by order of the same court dated February 23, 1999. Ordered that the appeal is dismissed, with costs. No appeal lies from an order denying a motion for reargument (see, Mgrditchian v Donato, 141 AD2d 513). In any event, [410] the plaintiff previously appealed from an order of the same court dated February 23, 1999, which granted the defendants’ respective motions to dismiss the complaint (App Div Docket No. 1999-02613). However, the plaintiff failed to perfect that appeal, and it was dismissed for failure to prosecute by decision and order of this Court dated December 14, 1999. That dismissal constituted an adjudication on the merits with respect to all issues which could have been reviewed therein, and the plaintiff is therefore precluded from obtaining appellate review of those issues on this appeal from the denial of her motion (see, Rúbeo v National Grange Mut. Ins. Co., 93 NY2d 750; Bray v Cox, 38 NY2d 350; Matter of Gross v City of New York, 266 AD2d 214). O’Brien, J. P., Santucci, H. Miller and Schmidt, JJ., concur.