Appeal from a judgment of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered June 26, 2009.
Appellate Term, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
PRESENT: WESTON, J.P., GOLIA and RIOS, JJ
The judgment, entered pursuant to an order granting plaintiff's motion for summary judgment and denying defendant's cross motion for summary judgment dismissing the complaint, awarded plaintiff the principal sum of $973.36.
ORDERED that the appeal is dismissed.
In this action, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. By order entered September 24, 2008, the Civil Court granted plaintiff's motion for summary judgment and denied defendant's cross motion. Defendant filed a notice of appeal from this order. By order dated April 23, 2009, this court dismissed defendant's appeal due to defendant's failure to perfect the appeal. On June 26, 2009, a judgment was entered awarding plaintiff the principal sum of $973.36. Defendant now appeals from the judgment.
As a general rule, we do not consider any issue on a subsequent appeal that was raised, or could have been raised, on 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 ; Bray v Cox, 38 NY2d 350 ). The issues raises on this appeal could have been raised on the prior appeal. "The dismissal of the prior appeal constituted an adjudication on the merits with respect to all issues that could have been reviewed therein," and we decline to review those issues on this appeal (Gammal v La Casita Milta, 278 AD2d 364, 364 ; see Rubeo, 93 NY2d 750; Bray, 38 NY2d 350).
Weston, J.P., Golia and Rios, JJ., concur.
Decision Date: June 30, 2011
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