LOPEZ v. Weeks Marine, Inc., third-party defendant-respondent.

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Supreme Court, Appellate Division, Second Department, New York.

John LOPEZ, et al., appellants, v. CITY OF NEW YORK, defendant third-party plaintiff-respondent; Weeks Marine, Inc., third-party defendant-respondent.

Decided: September 27, 1999

GUY JAMES MANGANO, P.J., CORNELIUS J. O'BRIEN, THOMAS R. SULLIVAN and GLORIA GOLDSTEIN, JJ. Bert Taras, P.C. (Pollack, Pollack, Isaac & DeCicco, New York, N.Y. [Howard Fishkin and Brian J. Isaac] of counsel), for appellants. Michael D. Hess, Corporation Counsel, New York, N.Y. (Barry P. Schwartz and Susan Choi-Hausman of counsel), for defendant third-party plaintiff-respondent. Rohrberg & Associates, New York, N.Y. (Louis M. Rohrberg of counsel), for third-party defendant-respondent.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Richmond County (Cusick, J.), dated January 26, 1998, as, upon reargument, adhered to those portions of a prior order of the same court, dated July 22, 1997, granting those branches of the third-party defendant's motion which were to dismiss the causes of action premised upon alleged violations of Labor Law §§ 200 and 241(6) and upon alleged common-law negligence in failing to provide a safe workplace.

ORDERED that the appeal is dismissed, with one bill of costs.

The order appealed from, which granted the plaintiffs' motion for reargument and adhered to a prior order of the court dated July 22, 1997, is not reviewable.   The plaintiffs previously appealed from the order dated July 22, 1997 (App.Div. Docket No. 97-08326), but they failed to perfect that appeal, and that appeal was dismissed by decision and order on motion of this court dated March 31, 1998, 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 plaintiffs are therefore precluded from obtaining appellate review of those issues at this time (see, Bray v. Cox, 38 N.Y.2d 350, 379 N.Y.S.2d 803, 342 N.E.2d 575;  Felix v. Herby Realty Corp., 248 A.D.2d 431, 668 N.Y.S.2d 944;  Kimble v. Caraballo, 243 A.D.2d 610, 668 N.Y.S.2d 894;  Tepper v. Furino, 239 A.D.2d 405, 659 N.Y.S.2d 43).


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