CITIBANK v. LEVIN

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

CITIBANK, N.A., respondent, v. Sheldon LEVIN, et al., appellants, et al., defendants.

Decided: March 22, 1999

SONDRA MILLER, J.P., ANITA R. FLORIO, LEO F. McGINITY and DANIEL F. LUCIANO, JJ. Robert Allan Muir, Jr., Brooklyn, N.Y., for appellants. Deutsch & Schneider, Glendale, N.Y. (William J. Fielding of counsel), for respondent.

In an action to foreclose a mortgage, the defendants Sheldon Levin, Roslyn Levin, and Jay Levin appeal from an order of the Supreme Court, Kings County (Held, J.), dated November 17, 1997, which denied their motion to vacate and set aside a sale of the subject property.

ORDERED that the appeal is dismissed, with costs to the plaintiff.

By notice of appeal dated October 21, 1997, the appellants took an appeal in this action from an order of the Supreme Court, Kings County, dated September 15, 1997.   That order had decided, and therefore the appeal brought up for review, all of the issues raised in the appeal at bar.   However, the prior appeal was dismissed for want of prosecution by decision and order of this court dated June 10, 1998.   The dismissal of the prior appeal for want of prosecution constituted an adjudication “on the merits of all claims which could have been litigated had the appeal been timely argued or submitted” (Bray v. Cox, 38 N.Y.2d 350, 355, 379 N.Y.S.2d 803, 342 N.E.2d 575).  Accordingly, the appeal from the order dated November 17, 1997, is dismissed (see, 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).

MEMORANDUM BY THE COURT.

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