Midlantic Commercial Leasing Corp. v. Levin

Oct 24, 2005
Versions:22 A.D.3d 727
803 N.Y.S.2d 122

In an action, inter alia, to recover damages for breach of a lease, the defendant Isaac Levin appeals from an order of the Supreme Court, Nassau County (McCarty, J.), dated May 24, 2004, which denied his motion to vacate a judgment of the same court (Shifrin, R.), dated July 12, 2002, which was in favor of the plaintiff and against him in the total sum of $111,440.03.

Ordered that the appeal is dismissed, with costs.

As a general rule, we do not consider any issues raised on a subsequent appeal that were raised, or could have been raised, in a prior appeal that was dismissed for lack of prosecution (see Bray v Cox, 38 NY2d 350, 353 [1976]), although we have the inherent discretion to consider such issues (see Rubeo v National Grange Mut. Ins. Co., 93 NY2d 750, 756 [1999]). Here, we decline to exercise this discretion (see Pagones v Maddox, 295 AD2d 489 [2002]).

The defendant Isaac Levin appealed from a prior judgment of the Supreme Court, Nassau County (Shifrin, R.), dated July 12, 2002, which, upon an order of the same court entered July 16, 1998, awarded the plaintiff the total sum of $111,440.03. That appeal (App Div docket No. 2003-08610) was dismissed by decision and order on motion of this Court dated October 22, 2004, for failure to timely perfect in accordance with the Court rules (see 22 NYCRR 670.8) and an earlier decision and order on motion dated July 7, 2004. Florio, J.P., Crane, Ritter and Lifson, JJ., concur.