Catalano v. City of New York

63 A.D.3d 979, 880 N.Y.S.2d 549

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 23, 2009
• Status: Published

Opinion

In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Richmond County (Mega, J.), entered May 7, 2008, which, upon an order of the same court dated June 25, 2004, granting the defendants’ motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the 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 was raised, 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 plaintiff appealed from the order dated June 25, 2004, which granted the defendants’ motion for summary judgment dismissing the complaint on the ground that she did not sustain a serious injury within the 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 the instant 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.