Gabbay v. Gabbay

In a matrimonial action in which the parties were divorced by judgment entered December 30, 1998, as amended, inter alia, by judgments dated January 21, 1999, and February 16, 2000, respectively, the defendant former husband appeals from an order of the Supreme Court, Queens County (Gartenstein, J.H.O.), dated August 7, 2000, which denied his motion to vacate or modify the second amended judgment of divorce dated February 16, 2000. Ordered that the order is affirmed, without costs or disbursements. The defendant appealed from the original judgment of the Supreme Court, Queens County, dated December 30, 1998, which, inter alia, determined maintenance, child support, and equitable distribution. That appeal was dismissed by decision [378] and order of this Court dated October 28, 1999, for lack of prosecution. As a general rule, we do not consider any issue raised on a subsequent appeal that was raised, or could have been raised, in an earlier appeal which was dismissed for lack of prosecution, although we have inherent jurisdiction to do so (see Rubeo v National Grange Mut. Ins. Co., 93 NY2d 750; Bray v Cox, 38 NY2d 350). We decline to exercise that discretion here. The defendant notes that the plaintiffs former attorney was convicted of a felony on July 13, 1999, and disbarred pursuant to Judiciary Law § 90 (4) (see Matter of Kurtz, 263 AD2d 55). However, that disbarment occurred subsequent to the trial of the matrimonial action and the issuance of the first amended judgment of divorce dated January 21, 1999, which awarded counsel fees to the plaintiffs former attorney and arrears of maintenance and child support to the plaintiff. The disbarment of the plaintiffs former attorney had no effect on the issues before us. The appellant’s remaining contentions are without merit (see Hazen v Bottiglieri, 286 AD2d 708). Ritter, J.P., Altman, Smith and Goldstein, JJ., concur.