| Gurman v Fotiades |
| 2010 NY Slip Op 04546 [73 AD3d 1126] |
| May 25, 2010 |
| Appellate Division, Second Department |
| Helen Gurman et al., Respondents, v Daphne M.N.Fotiades et al., Appellants. |
—[*1] Malen & Associates, Westbury, N.Y. (Timothy J. Murtha and Jeffrey Wolstein of counsel),for respondents.
In an action to recover on two instruments for the payment of money only, brought bymotion for summary judgment in lieu of complaint pursuant to CPLR 3213, the defendantsseparately appeal from an order of the Supreme Court, Suffolk County (Pastoressa, J.), datedSeptember 5, 2008, which denied their motion to vacate a judgment of the same court (Klein, J.),entered August 13, 2003, which, upon an order dated June 5, 2002, granting the plaintiffs'motion for summary judgment, was in favor of the plaintiffs and against them in the principalsum of $20,000.
Ordered that the appeals are dismissed, with one bill of costs payable by the appellantsappearing separately and filing separate briefs.
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,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]). While this Courtpossesses the discretion to permit review in the interest of justice (see Faricelli v TSSSeedman's, 94 NY2d 772 [1999]; Vecchio v Colangelo, 274 AD2d 469 [2000]),such review should be exercised sparingly (see Gammal v La Casita Milta, 278 AD2d364 [2000]). The defendants previously appealed from an order dated February 3, 2004, whichdenied a prior motion to vacate the judgment entered August 13, 2003. That appeal wasdismissed by decision and order on motion of this Court dated November 3, 2004, for failure toprosecute in accordance with the rules of this Court, and that dismissal constituted anadjudication on the merits with respect to all issues which could have been reviewed on thatappeal. We decline to exercise our discretion to determine the merits of the instant appeals,which raise the same issues as could have been raised on the prior appeal (see Bray vCox, 38 NY2d 350 [1976]; Blue Chip Mtge. Corp. v Strumpf, 50 AD3d 936 [2008];Matter of Talt v Murphy, 35 AD3d 486 [2006]; Hepner v New York City Tr.Auth., 27 AD3d 418 [2006]). Fisher, J.P., Dillon, Dickerson and Eng, JJ., concur.