Opinion
April 23, 1996
Appeal from the Supreme Court, Nassau County (Ralph Franco, J.).
The record shows that plaintiffs filed a notice of appeal from the prior order of October 20, 1994, but that the appeal was automatically dismissed for failure to perfect ( 22 NYCRR 670.8 [e], [h]). Since such a dismissal is tantamount to an affirmance, issues that could have been raised on the dismissed appeal may not be reviewed on the instant appeal ( Montalvo v. Nel Taxi Corp., 114 A.D.2d 494, lv denied and dismissed 68 N.Y.2d 643). Limiting our review to the order of February 7, 1995, we agree with the IAS Court that the effect of the prior orders was to preclude plaintiffs from presenting a prima facie case of negligence as against defendants Compass Retail and Equitable Life, and to similarly preclude plaintiffs as against defendant G.S.G.S.B. in the event they failed, as they did, to serve a further bill of particulars, and that such defendants are therefore entitled to summary judgment.
Concur — Rosenberger, J.P., Wallach, Rubin, Kupferman and Tom, JJ.