From Casetext: Smarter Legal Research

Alfieri v. Empire Beef

Appellate Division of the Supreme Court of New York, Fourth Department
Jun 8, 2007
41 A.D.3d 1313 (N.Y. App. Div. 2007)

Opinion

No. CA 06-01459.

June 8, 2007.

Appeals from a judgment of the Supreme Court, Monroe County (Thomas A. Stander, J.), entered November 1, 2004 in a breach of contract action. The judgment awarded plaintiff Joseph Alfieri the sum of $649,890.72 and awarded plaintiff Salvatore DiPerna the sum of $649,890.72 as against defendant Statewide Food Service, Inc.

ULLEY, MARKS, TANENBAUM PEZZULO, LLP, ROCHESTER (DIANA B. CAVALL OF COUNSEL), FOR DEFENDANT-APPELLANT EMPIRE BEEF CO., INC.

KAMAN, BERLOVE, MARAFIOTI, JACOBSTEIN GOLDMAN, LLP, ROCHESTER (RICHARD GLEN CURTIS OF COUNSEL), FOR DEFENDANT-APPELLANT STATEWIDE FOOD SERVICE, INC. PETER C. NELSON, ROCHESTER, FOR PLAINTIFFS-RESPONDENTS.

Present — Scudder, P.J., Centra, Lunn, Fahey and Peradotto, JJ.


It is hereby ordered that said appeals be and the same hereby are unanimously dismissed without costs.

Memorandum: Defendants Empire Beef Co., Inc. (Empire) and Statewide Food Service, Inc. (Statewide) each appeal from a judgment awarding plaintiffs a sum of money as against Statewide. That judgment was entered pursuant to an order granting plaintiffs' cross motion for partial summary judgment against Statewide. The record establishes that Empire had responded to the cross motion by stating that it took no position in support of or in opposition to the cross motion. Empire therefore is not aggrieved by the judgment, and we dismiss its appeal from it ( see Aronov v Regency Gardens Apts. Corp., 34 AD3d 404; Whiteman v Yeshiva Mesivta Torah Temimah, 255 AD2d 378; see generally CPLR 5511). We also dismiss Statewide's appeal from the judgment. Statewide took an appeal from the order granting plaintiffs' cross motion for partial summary judgment, but the appeal was subsequently deemed abandoned and dismissed pursuant to 22 NYCRR 1000.12 (b) based upon Statewide's failure to perfect it. "[A] prior dismissal for want of prosecution acts as a bar to a subsequent appeal as to all questions that were presented on the earlier appeal" ( Bray v Cox, 38 NY2d 350, 353). We decline to exercise our discretion to review the merits of Statewide's appeal ( see Combier v Anderson, 34 AD3d 333; Palmieri v Windowrama, Inc., 277 AD2d 210; see generally Faricelli v TSS Seedman's, 94 NY2d 772, 774; Rubeo v National Grange Mut. Ins. Co., 93 NY2d 750, 756).


Summaries of

Alfieri v. Empire Beef

Appellate Division of the Supreme Court of New York, Fourth Department
Jun 8, 2007
41 A.D.3d 1313 (N.Y. App. Div. 2007)
Case details for

Alfieri v. Empire Beef

Case Details

Full title:JOSEPH ALFIERI et al., Respondents, v. EMPIRE BEEF CO., INC., et al.…

Court:Appellate Division of the Supreme Court of New York, Fourth Department

Date published: Jun 8, 2007

Citations

41 A.D.3d 1313 (N.Y. App. Div. 2007)
2007 N.Y. Slip Op. 5077
836 N.Y.S.2d 456

Citing Cases

Chiappone v. William Penn Life Ins. Co. of N.Y.

To the extent that plaintiff advances contentions relating to the prior order denying her motion for summary…

Williams v. Williams

The appeals taken by defendant from the judgment and the January 2005 order were dismissed based on his…