Opinion
September 29, 2000.
Appeal from Judgment of Supreme Court, Erie County, O'Donnell, J. — Matrimonial.
PRESENT: PIGOTT, JR., P. J., HAYES, WISNER, SCUDDER AND BALIO, JJ.
Judgment unanimously affirmed without costs.
Memorandum:
Following plaintiff's commencement of this divorce action in December 19 94, 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 A.D.2d 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 affirmed 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 A.D.2d 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.