Santana v. Sterling

In an action to recover damages for personal injuries, the defendant Linda J. Priest appeals, as limited by her brief, from so much of an order of the Supreme Court, Queens County (Dye, J.), dated March 9, 2000, as upon, in effect, granting re-argument, adhered to that portion of a prior order of the same court, dated October 29, 1999, which denied her motion for summary judgment dismissing the complaint insofar as asserted against her.

Ordered that the appeal is dismissed, without costs or disbursements.

The appellant previously appealed from the order of the Supreme Court, Queens County, dated October 29, 1999, which denied her motion for summary judgment dismissing the complaint insofar as asserted against her (App Div Docket No. *2202000-495). That appeal was dismissed by decision and order of this Court dated September 15, 2000, for lack of prosecution (see, 22 NYCRR 670.8 [h]). The dismissal constituted an adjudication on the merits with respect to all issues which could have been reviewed therein, and the appellant is therefore precluded from obtaining appellate review of those issues at this time (see, Bray v Cox, 38 NY2d 350; Lopez v City of New York, 264 AD2d 819).

We note that the Supreme Court improperly characterized the appellant’s motion as one for renewal and reargument. Since the new fact on which renewal was based was available to the appellant when she submitted her original motion, it did not constitute a proper ground for renewal (see, CPLR 2221; Kirkpatrick v State Farm Fire & Cas. Co., 255 AD2d 363). Thus, the motion was solely a motion to reargue. Mangano, P. J., S. Miller, McGinity, Luciano and Smith, JJ., concur.