| Spiritis v Village of Hempstead Community Dev. Agency |
| 2009 NY Slip Op 05108 [63 AD3d 907] |
| June 16, 2009 |
| Appellate Division, Second Department |
| Glen L. Spiritis, Respondent, v Village of HempsteadCommunity Development Agency, Appellant. |
—[*1] Steven Cohn, P.C., Carle Place, N.Y. (Melissa A. Lenowitz of counsel), forrespondent.
In an action, inter alia, to recover damages for breach of contract, the defendant appeals froma judgment of the Supreme Court, Nassau County (Dana, Ct. Atty. Ref.), entered November 28,2007, which is in favor of the plaintiff and against it in the principal sum of $519,095.29.
Ordered that the judgment is affirmed, with costs.
As a general rule, this Court does not consider an issue raised on a subsequent appeal thatwas or could have been raised on a prior 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 defendantappealed from an order dated July 28, 2006, which granted that branch of the plaintiff's motionwhich was for summary judgment on the issue of liability on the first four causes of action. Thatappeal was dismissed as abandoned by decision and order on motion of this Court dated August13, 2007. The dismissal constituted an adjudication on the merits with respect to all issues whichcould have been reviewed on that appeal. We decline to exercise our discretion to determine themerits of the present appeal to the extent that it raises issues that could have been raised on theappeal from the prior order that was dismissed for failure to perfect (see Bray v Cox, 38NY2d 350 [1976]; Utility Audit Group v Apple Mac & R Corp., 59 AD3d 707 [2009];Princeton Ins. Co. v Jenny Exhaust Sys., Inc., 49 AD3d 518 [2008]).
Contrary to the defendant's remaining contention, the award for the hours the plaintiffworked between February 1, 2004, and September 20, 2004, did not exceed the amountauthorized by the contract between the parties. Mastro, J.P., Florio, Eng and Leventhal, JJ.,concur.
[As corrected at the direction of the Appellate Division, Second Department, November 12, 2009.]