| Blue Chip Mtge. Corp. v Strumpf |
| 2008 NY Slip Op 03573 [50 AD3d 936] |
| April 22, 2008 |
| Appellate Division, Second Department |
| Blue Chip Mortgage Corp., Appellant, v Linda Strumpf,Respondent. (Appeal Nos. 1 and 3.) Blue Chip Mortgage Corp. Appellant-Respondent, v LindaStrumpf, Respondent-Appellant. (Appeal No. 2.) |
—[*1] Linda Strumpf, South Salem, N.Y., respondent pro se on appeal Nos. 1 and 3 andrespondent-appellant pro se on appeal No. 2.
In an action to recover damages for legal malpractice, the plaintiff appeals (1) from anamended order of the Supreme Court, Nassau County (Davis, J.), dated July 27, 2005, whichgranted the defendant's motion for leave to renew her prior motion to dismiss the complaintpursuant to CPLR 3211 (a) (1) and (7) and, upon renewal, awarded the defendant summaryjudgment dismissing the complaint (2), as limited by its brief, from so much of an order of thesame court dated June 19, 2007, as denied that branch of its motion which was, in effect, toresettle the decretal provisions of the amended order dated July 27, 2005, and (3) from ajudgment of the same court entered July 9, 2007, which, upon the amended order dated July 27,2005, dismissed the complaint, and the defendant cross-appeals, as limited by her brief, from somuch of the order dated June 19, 2007, as granted that branch of the plaintiff's motion which wasfor leave to submit a judgment to be entered in this matter.
Motion by the respondent, in effect, to dismiss the appeal from the judgment entered July 9,[*2]2007 on the ground that the issues raised on that appeal arebarred by the doctrine of Bray v Cox (38 NY2d 350 [1976]). By decision and order onmotion of this Court dated March 19, 2008 [2008 NY Slip Op 66851(U)], the motion to dismissthe appeal was held in abeyance and was referred to the Justices hearing the appeal fordetermination upon the argument or submission thereof.
Upon the papers filed in support of the motion and the papers filed in opposition thereto, andupon the argument of the appeals, it is,
Ordered that the motion is granted; and it is further,
Ordered that the appeal from the judgment is dismissed; and it is further,
Ordered that the appeals from the amended order dated July 27, 2005 and the order datedJune 19, 2007 are dismissed; and it is further,
Ordered that the cross appeal is dismissed as academic; and it is further,
Ordered that one bill of costs is awarded to the defendant.
The appeal from the amended order dated July 27, 2005 must be dismissed because the rightof direct appeal therefrom terminated with the entry of the judgment in the action (see Matterof Aho, 39 NY2d 241, 248 [1976]). The issues raised on the appeal from the amended orderare brought up for review on the appeal from the judgment (see CPLR 5501 [a] [1]).
The appeal from the order dated June 19, 2007 must be dismissed, as no appeal lies from anorder denying resettlement of the substantive or decretal provisions of a prior order (see Schill v Schill, 42 AD3d 443[2007]; Brooklyn Union Gas Co. v Interboro Asphalt Surface Co., 303 AD2d 532, 536[2003]; Scopelliti v Scopelliti, 250 AD2d 752 [1998]).
As a general rule, we do not consider an issue on a subsequent appeal which was raised orcould have been raised in an earlier appeal which was dismissed for lack of prosecution, althoughthe 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 appealedfrom an order dated July 19, 2005, which granted the defendant's motion for leave to renew herprior motion to dismiss the complaint pursuant to CPLR 3211 (a) (1) and (7) and, upon renewal,awarded the defendant summary judgment dismissing the complaint. That appeal was dismissedby decision and order on motion of this Court dated April 4, 2006 for failure to perfect inaccordance with the rules of this Court, and that dismissal constituted an adjudication on themerits with respect to all issues which could have been reviewed on that appeal. We decline toexercise our discretion to determine the merits of the instant appeal from the judgment, whichraises the same issues as could have been raised on the prior appeal (see Bray v Cox, 38NY2d 350 [1976]; Matter of Talt vMurphy, 35 AD3d 486 [2006]; Hepner v New York City Tr. Auth., 27 AD3d 418 [2006]).
The defendant's cross appeal has been rendered academic in light of our determination of theappeals herein. Mastro, J.P., Santucci, Eng and Belen, JJ., concur.