Fedeluja Francisco, Plaintiff, v. GUZMAN (2023)

Appeal from judgment, Supreme Court, Bronx County (Ben R. Barbato, J.), entered June 6, 2022, as limited by the briefs, dismissing the complaint of plaintiff Belkis Nunez Geronimo, unanimously dismissed, without costs.

Under CPLR 5501(a)(1), an appeal from a final judgment brings up for review “any non-final judgment or order which necessarily affects the final judgment.”  Plaintiff's appeal from the judgment does not bring up for review the prior order entered July 13, 2021 granting defendants’ motion for summary judgment dismissing the complaint.  The order, marked “case disposed in its entirety,” was “final and disposed of all of the causes of action between the parties and left nothing for further judicial action apart from the ministerial entry of the judgment” (Rivera v. Skanska USA Civil Northeast, Inc., 179 A.D.3d 455, 113 N.Y.S.3d 538 [1st Dept. 2020];  see also Burke v. Crosson, 85 N.Y.2d 10, 15–16, 623 N.Y.S.2d 524, 647 N.E.2d 736 [1995];  Pollak v. Moore, 85 A.D.3d 578, 578, 926 N.Y.S.2d 434 [1st Dept. 2011]).  Plaintiff, who failed to timely appeal the order (see CLR 5513[a]), “cannot revive that appeal by the expedient of effecting a ministerial entry of judgment upon the final order” after the time to appeal had elapsed (Pollak, 85 A.D.3d at 578, 926 N.Y.S.2d 434;  see Rivera, 179 A.D.3d 455, 113 N.Y.S.3d 538).