January 18, 1996
Appeal from the Supreme Court, New York County (Myriam Altman, J.).
The second, third and fourth causes of action in this action were previously asserted as pendent State claims in a Federal action. Such claims were dismissed in the Federal action as a result of lack of Federal court jurisdiction. Since the dismissal in Federal court was not on the merits and since these causes of action are not equivalent to the causes of action which were dismissed on the merits in the Federal action ( see, Capital Tel. Co. v New York Tel. Co., 146 A.D.2d 312), the doctrine of res judicata is inapplicable ( Lamontagne v Board of Trustees, 183 A.D.2d 424, 425-426, lv denied 80 N.Y.2d 759).
While plaintiff seeks to challenge the IAS Court's ruling with respect to the first cause of action, plaintiff has never filed a notice of cross appeal from the court's order and thus has not properly presented the issue for our review ( see, People v Consolidated Edison Co., 34 N.Y.2d 646, 648).
Concur — Ellerin, J.P., Rubin, Nardelli, Tom and Mazzarelli, JJ.