| Catalano v City of New York |
| 2009 NY Slip Op 05280 [63 AD3d 979] |
| June 23, 2009 |
| Appellate Division, Second Department |
| Joan Catalano, Appellant, v City of New York et al.,Respondents. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Pamela Seider Dolgow andFay Ng of counsel), for respondent City of New York.
In an action to recover damages for personal injuries, the plaintiff appeals from a judgmentof the Supreme Court, Richmond County (Mega, J.), entered May 7, 2008, which, upon an orderof the same court dated June 25, 2004, granting the defendants' motion for summary judgmentdismissing the complaint on the ground that the plaintiff did not sustain a serious injury withinthe meaning of the Insurance Law § 5102 (d), dismissed the complaint.
Ordered that the appeal is dismissed, with costs.
As a general rule, we do not consider any issue raised on a subsequent appeal that wasraised, or could have been raised, in an earlier appeal that was dismissed for lack of prosecution,although we have 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]). Here, the plaintiffappealed from the order dated June 25, 2004, which granted the defendants' motion for summaryjudgment dismissing the complaint on the ground that she did not sustain a serious injury withinthe meaning of Insurance Law § 5102 (d). That appeal (Appellate Division docket No.2004-07627) was dismissed by decision and order on motion of this Court dated May 10, 2005,for failure to prosecute. The dismissal for lack of prosecution is ground for dismissal of theinstant appeal, which raised issues which were or could have been raised on the prior appeal(see Rubeo v National Grange Mut. Ins. Co., 93 NY2d 750 [1999]; Bray v Cox,38 NY2d 350 [1976]; Utility Audit Group v Apple Mac & R Corp., 59 AD3d 707[2009]). Rivera, J.P., Dillon, Covello, Eng and Hall, JJ., concur.