Elrac, Inc. v. Belessis

Mar 10, 2003
Versions:303 A.D.2d 445
755 N.Y.S.2d 895

—In an action, inter alia, to recover damages for breach of a commercial lease, the plaintiff appeals (1) from the findings of fact and conclusions of law of the Supreme Court, Suffolk County (Catterson, J.), dated January 18, 2002, and (2), as limited by its brief, from so much of a judgment of the same *446court entered February 19, 2002, as, in effect, dismissed the complaint and is in favor of the defendant and against it on the counterclaim on the issue of liability.

Ordered that the appeals are dismissed, with costs.

The appeal from the Supreme Court’s findings of fact and conclusions of law dated January 18, 2002, must be dismissed as no appeal lies therefrom (see Matter of County of Westchester v O’Neill, 191 AD2d 556 [1993]; Benedetto v O’Grady, 10 AD2d 628 [I960]).

The appeal from the judgment must also be dismissed. As a general rule, we do not consider any issue raised on a subsequent appeal that was raised, or could have been raised, in a prior appeal that was dismissed for failure to prosecute, although we have the inherent jurisdiction to do so (see Rubeo v National Grange Mut. Ins. Co., 93 NY2d 750 [1999]; Bray v Cox, 38 NY2d 350 [1976]). Here, the appellant failed to perfect an appeal from an order and interlocutory judgment of the Supreme Court, Suffolk County, in this action, dated November 13, 2001, which granted the defendant’s motion for summary judgment on her counterclaim and for summary judgment dismissing the complaint, and denied the appellant’s cross motion for summary judgment on the complaint. That appeal (App. Div. Docket No. 2001-10592) was dismissed by decision and order on motion of this Court dated August 7, 2002, for failure to perfect in accordance with the rules of this Court. The dismissal of that appeal constituted an adjudication on the merits with respect to all issues which could have been reviewed therein, and we find no basis to review the same issues on this appeal (see Rubeo v National Grange Mut. Ins. Co., supra; Bray v Cox, supra). Santucci, J.P., Friedmann, Luciano and Rivera, JJ., concur.