Deller v. Mercy Medical Center

As a general rule, we do not consider an issue on a subsequent appeal which was raised or could have been raised in an earlier appeal which was dismissed for lack of prosecution, although the Court has 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]). The plaintiff appealed from a judgment entered January 12, 2009, which upon, inter alia, an order of the Supreme Court, Nassau County, entered October 4, 2005, denying the plaintiffs motion to restore the action to the trial calendar, dismissed the complaint pursuant to CPLR 3404. That appeal was dismissed by decision and order on motion of this Court dated August 4, 2010, for failure to perfect in accordance with the rules of this Court, and that dismissal constituted an 713 adjudication on the merits with respect to all issues which could have been reviewed on that appeal (see Bray v Cox, 38 NY2d at 355). Under the circumstances of this case, we decline to exercise our discretion to determine the merits of the instant appeal from the amended judgment, which raises the same issues as could have been raised on the prior appeal (see Bray v Cox, 38 NY2d 350 [1976]; Graziano v Graziano, 66 AD3d 835 [2009]; Blue Chip Mtge. Corp. v Strumpf, 50 AD3d 936 [2008]; Matter of Talt v Murphy, 35 AD3d 486 [2006]; Hepner v New York City Tr. Auth., 27 AD3d 418 [2006]). Dillon, J.E, Eng, Sgroi and Miller, JJ., concur.