Gammal v. La Casita Milta, Inc.

Dec 18, 2000
Versions:278 A.D.2d 364
718 N.Y.S.2d 622
2000 N.Y. App. Div. LEXIS 13199

In an action for the specific performance of the sale of real property, the plaintiffs appeal from an order of the Supreme Court, Kings County (Belen, J.), dated December 21, 1999, which upon, in effect, granting reargument, adhered to a prior order of the same court, dated August 4, 1999, denying their motion for summary judgment on the complaint.

Ordered that the appeal is dismissed, with costs.

The plaintiffs’ appeal from the order dated August 4, 1999, denying their motion for summary judgment (App Div Docket No. 1999-09320) was dismissed for failure to prosecute by decision and order of this Court dated June 13, 2000. A litigant may not raise an issue on a subsequent appeal which could have been raised on a prior appeal that was dismissed for lack of prosecution (see, Bray v Cox, 38 NY2d 350; Downes v Aran, 273 AD2d 435; Gallagher v New York City Tr. Auth., 270 AD2d 228; TPZ Corp. v Tsoukas, 264 AD2d 837; Hind v Palermo, 262 AD2d 285). The dismissal of the prior appeal constituted an adjudication on the merits with respect to all issues that could have been reviewed therein, thus precluding review at this time (see, Rubeo v National Grange Mut. Ins. Co., 93 NY2d 750; Bray v Cox, supra; Seeley v Dallao Rest., 271 AD2d 677; Brown v United Christian Evangelistic Assn., 270 AD2d 378). While this Court possesses the discretion to permit review in the interest of justice (see, Faricelli v TSS Seedman’s, Inc., 94 NY2d 772; Vecchio v Colangelo, 274 AD2d 469), such review should be exercised sparingly (see, Brosnan v Behette, 243 AD2d 524, 527), and we decline to do so in this case (see, Matter of Keenan v Albert, 273 AD2d 388). Ritter, J. P., S. Miller, Goldstein and Smith, JJ., concur.