| Madison Realty Capital, L.P. v Broken Angel, LLC |
| 2013 NY Slip Op 04313 [107 AD3d 766] |
| June 12, 2013 |
| Appellate Division, Second Department |
| Madison Realty Capital, L.P.,Respondent, v Broken Angel, LLC, et al., Defendants, and Arthur Wood,Appellant. |
—[*1] Kriss & Feuerstein LLP, New York, N.Y. (Jerold C. Feuerstein and Kristine L.Grinberg of counsel), for respondent.
In an action to foreclose a mortgage, the defendant Arthur Wood appeals from ajudgment of foreclosure and sale of the Supreme Court, Kings County (Bayne, J.), datedJanuary 10, 2012, which, inter alia, directed the sale of the subject premises.
Ordered that the appeal is dismissed, without costs or disbursements.
As a general rule, we do not consider an issue on a subsequent appeal which wasraised or could have been raised in an earlier appeal which was dismissed for lack ofprosecution, although this Court has the inherent jurisdiction to do so (see Rubeo vNational Grange Mut. Ins. Co., 93 NY2d 750 [1999]; Bray v Cox, 38 NY2d350 [1976]). The defendant Arthur Wood appealed from an order dated August 5, 2010,which granted a motion by the plaintiff for, inter alia, summary judgment on thecomplaint in this mortgage foreclosure action. However, that appeal was dismissed bydecision and order on motion of this Court dated April 26, 2011, for failure to timelyperfect. We decline to exercise our discretion to determine the merits of the instantappeal, which raises the same issues that could have been raised on the appeal from theorder granting the plaintiff's motion, inter alia, for summary judgment (see Bray vCox, 38 NY2d at 353-356). Mastro, J.P., Leventhal, Sgroi and Miller, JJ., concur.