Mallery v. Mallery

In an action for a divorce and ancillary relief, the defendant wife appeals from an order of the Supreme Court, Suffolk County (Floyd, J.), dated June 27, 1996, which denied her posttrial motion for a new trial. Ordered that the appeal is dismissed, with costs. Where a party’s appeal from a judgment is dismissed by an [286] appellate court for failure to perfect, the party is estopped for reasons of judicial economy from seeking review of issues which could have been raised on the prior appeal (see, Bray v Cox, 38 NY2d 350; see also, Montalvo v Nel Taxi Corp., 114 AD2d 494; Matter of Smith v McManus & Sons, 101 AD2d 890). Thus, the wife’s appeal from an order denying her motion for a new trial on the issue of equitable distribution is barred, since she could have raised the same issue in her appeal from the judgment of divorce, entered December 22, 1995, which was dismissed by decision and order on this Court’s own motion dated February 5, 1997, for failure to perfect (see, 22 NYCRR 670.8 [h]). O’Brien, J. P., Sullivan, Goldstein and Luciano, JJ., concur.