Gihon, LLC v. 501 Second Street, LLC

May 9, 2006
Versions:29 A.D.3d 628
815 N.Y.S.2d 656

Ordered that the order dated October 22, 2003 is affirmed insofar as appealed from; and it is further,

Ordered that the money judgment is affirmed; and it is further,

Ordered that one bill of costs is awarded to the plaintiff.

It is well settled that a litigant may not raise any issue on a subsequent appeal which was raised, or could have been raised, in an earlier appeal which was dismissed for lack of prosecution (see Bray v Cox, 38 NY2d 350 [1976]). Here, the defendant appealed from the order dated March 13, 2003. That appeal was dismissed for lack of prosecution. We decline to exercise our discretion to determine the issues raised in the present appeals, which could have been raised on the appeal from the order dated March 13, 2003 (see Midlantic Commercial Leasing Corp. v Levin, 22 AD3d 727 [2005]).

Furthermore, despite the defendant‘s contentions, the money judgment dated November 13, 2003 was properly entered through the signature of the court clerk (see CPLR 5016), and once that judgment was properly entered, “by operation of law, [it] created a lien on the defendant‘s real property in [Kings] county,” including the subject premises (Bank of N.Y. v Magri, 226 AD2d 412 [1996]; see CPLR 5018 [a]; 5203; Matter of Leonard v Brescia Lbr. Corp., 174 AD2d 621, 622 [1991]).

The defendant‘s remaining contentions are without merit.

Krausman, J.P., Luciano, Fisher and Dillon, JJ., concur.