Everett v. Brown

Appellate Division of the Supreme Court of New York

Everett v. Brown

278 A.D.2d 195, 716 N.Y.S.2d 904, 2000 N.Y. App. Div. LEXIS 12515

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 4, 2000

StatusPublished

This text of 278 A.D.2d 195 (Everett v. Brown) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Everett v. Brown, 278 A.D.2d 195, 716 N.Y.S.2d 904, 2000 N.Y. App. Div. LEXIS 12515 (N.Y. Ct. App. 2000).

Pincite

Opinion

In an action to recover damages for personal injuries, the defendant appeals from so much of an order of the Supreme Court, Kings County (Rappaport, J.), dated February 29, 2000, as conditionally granted the plaintiff’s motion pursuant to CPLR 3126 to strike his answer unless he provided a photograph of himself within 30 days, and denied his cross motion to stay enforcement of a prior order of the same court, dated November 17, 1999, directing him to produce a photograph of himself, pending an appeal therefrom.

Ordered that the appeal is dismissed, with costs.

A litigant may not raise an issue on a subsequent appeal which was raised, or could have been raised, in an earlier appeal that was dismissed for lack of prosecution (see, Bray v Cox, 38 NY2d 350). Here, the defendant appealed from a prior order of the Supreme Court, Kings County, dated November 17, 1999, which directed him to produce a photograph of himself. That appeal (App Div Docket No. 1999-11790) was dismissed by decision and order of this Court dated September 15, 2000, for failure to prosecute. The dismissal for lack of prosecution bars the instant appeal, which raises issues that could have been raised on the prior appeal (see, Rubeo v National Grange Mut. Ins. Co., 93 NY2d 750; Bray v Cox, supra). O’Brien, J. P., Sullivan, Krausman, Goldstein and Schmidt, JJ., concur.

Free access — add to your briefcase to read the full text and ask questions with AI

In an action to recover damages for personal injuries, the defendant appeals from so much of an order of the Supreme Court, Kings County (Rappaport, J.), dated February 29, 2000, as conditionally granted the plaintiff’s motion pursuant to CPLR 3126 to strike his answer unless he provided a photograph of himself within 30 days, and denied his cross motion to stay enforcement of a prior order of the same court, dated November 17, 1999, directing him to produce a photograph of himself, pending an appeal therefrom.

Ordered that the appeal is dismissed, with costs.

A litigant may not raise an issue on a subsequent appeal which was raised, or could have been raised, in an earlier appeal that was dismissed for lack of prosecution (see, Bray v Cox, 38 NY2d 350). Here, the defendant appealed from a prior order of the Supreme Court, Kings County, dated November 17, 1999, which directed him to produce a photograph of himself. That appeal (App Div Docket No. 1999-11790) was dismissed by decision and order of this Court dated September 15, 2000, for failure to prosecute. The dismissal for lack of prosecution bars the instant appeal, which raises issues that could have been raised on the prior appeal (see, Rubeo v National Grange Mut. Ins. Co., 93 NY2d 750; Bray v Cox, supra). O’Brien, J. P., Sullivan, Krausman, Goldstein and Schmidt, JJ., concur.

Cite This Page — Counsel Stack

Bluebook (online)

278 A.D.2d 195, 716 N.Y.S.2d 904, 2000 N.Y. App. Div. LEXIS 12515, Counsel Stack Legal Research, https://law.counselstack.com/opinion/everett-v-brown-nyappdiv-2000.

Opinion

Related

Cite This Page — Counsel Stack