Gallagher v. New York City Transit Authority

270 A.D.2d 228, 704 N.Y.S.2d 838, 2000 N.Y. App. Div. LEXIS 2510

Opinion

—In an action to recover damages for personal injuries, the defendant New York City Transit Authority appeals, as limited by its brief, from so much of an order of the Supreme Court, Queens County (LeVine, J.), dated December 15, 1998, as, upon reargument, granted the plaintiffs leave to amend their bill of particulars.

Ordered that the appeal is dismissed, with costs to the respondent.

It is well settled that a litigant may not raise any issue on a subsequent appeal which was raised, or could have been raised, in an earlier appeal which was dismissed for lack of prosecution (see, Bray v Cox, 38 NY2d 350; TPZ Corp. v Tsoukas, 264 AD2d 837). Here, the New York City Transit Authority appealed from a prior order of the Supreme Court, Queens County, dated October 14, 1998, which granted the plaintiffs’ motion for leave to amend their bill of particulars. That appeal (App Div Docket No. 1998-10626) was dismissed by decision and order of this Court dated October 20, 1999, 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., Altman, Friedmann, McGinity and Smith, JJ., concur.