| Catalanotto v Abraham |
| 2012 NY Slip Op 02831 [94 AD3d 937] |
| April 17, 2012 |
| Appellate Division, Second Department |
| Frank Catalanotto et al., Respondents, v Tom Abraham etal.,Defendants, and Kenneth Kirschenbaum, Appellant. |
—[*1] The Law Offices of Michael Catalanotto, P.C., St. James, N.Y., for respondents.
In an action, inter alia, to recover damages for breach of contract, the defendant KennethKirschenbaum appeals, as limited by his brief, from so much of an order of the Supreme Court,Suffolk County (Mayer, J.), dated January 13, 2011, as, upon reargument, adhered to a priordetermination in an order of the same court dated March 29, 2010, denying that branch of hismotion which was for summary judgment dismissing the complaint insofar as asserted againsthim.
Ordered that the appeal is dismissed, with costs.
In an order dated March 29, 2010, the Supreme Court, in pertinent part, denied that branch ofthe motion of the defendant Kenneth Kirschenbaum which was for summary judgmentdismissing the complaint insofar as asserted against him. Kirschenbaum appealed from thatorder, but by decision and order on motion of this Court dated December 1, 2010, the appeal wasdismissed for failure to prosecute. That dismissal constituted an adjudication on the merits withrespect to all issues which could have been reviewed on that appeal (see Deutsche Bank Natl. Trust Co. vPosner, 89 AD3d 674, 675 [2011]; Auriemmo v Auriemmo, 87 AD3d 1090, 1091 [2011]).
Kirschenbaum moved, inter alia, for leave to reargue that branch of his motion which was forsummary judgment dismissing the complaint insofar as asserted against him. In the orderappealed from, the Supreme Court granted leave to reargue but, upon reargument, adhered to theprior determination denying that branch of the motion. Kirschenbaum now appeals from so muchof that order as, upon reargument, adhered to the prior determination.
Generally, we do not consider an issue on a subsequent appeal which was raised or couldhave been raised in an earlier appeal which was dismissed for lack of prosecution, although wehave inherent jurisdiction to do so (see Rubeo v National Grange Mut. Ins. Co., 93 NY2d750 [1999]; Bray v Cox, 38 NY2d 350 [1976]; Madison v Tahir, 45 AD3d 744, 744-745 [2007]). Here,Kirschenbaum has not demonstrated any basis for the exercise of such discretion. Balkin, J.P.,Chambers, Hall and Austin, JJ., concur.