Galgano v. Sciara

In an action to recover damages for personal injuries, the plaintiffs appeal from a judgment of the Supreme Court, Nassau County (De Maro, J.), dated February 21, 2001, which, upon an order of the same court, dated October 2, 2000, granting the defendant’s motion for summary judgment dismissing the complaint, is in favor of the defendant and against them, dismissing the complaint. Ordered that the appeal is dismissed, with costs. The appellants previously appealed from an order dated October 2, 2000, which granted the defendant’s motion for summary judgment dismissing the complaint on the ground that the plaintiff Barbara Galgano did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). That appeal was dismissed by decision and order of this Court dated August 2, 2001, for lack of prosecution (see, 22 NYCRR 670.8 [h]). A dismissal of an appeal for want of prosecution constitutes an 376 adjudication on the merits with respect to all issues which could have been raised therein, and we find no basis to review the same issues on this appeal (see, Rubeo v National Grange Mut. Ins. Co., 93 NY2d 750; Bray v Cox, 38 NY2d 350; Smallwood v Federal Home Loan Mtge. Corp., 287 AD2d 537; cf., Andino v Samenga, 287 AD2d 425). Santucci, J. P., Altman, Florio, H. Miller and Cozier, JJ., concur.