Gihon, LLC v. 501 Second Street, LLC

Appellate Division of the Supreme Court of New York

Gihon, LLC v. 501 Second Street, LLC

29 A.D.3d 630, 814 N.Y.S.2d 729

Appellate Division of the Supreme Court of the State of New York·Decided May 9, 2006·Published·Cited by 4 cases

Opinion

In an action, inter alia, for a judgment declaring the parties’ rights and obligations under a commercial lease, the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Knipel, J.), dated November 29, 2004, as, upon an order of the same court dated March 13, 2003, finding the defendant in contempt and imposing a fine, granted that branch of the plaintiff’s motion which was for leave to enter a judgment against the defendant pursuant to the prior order dated March 13, 2003.

Ordered that the order is affirmed insofar as appealed from, with costs.

It is well settled that a litigant may not raise any issue on 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 [1976]). Here, the defendant appealed from the order dated March 13, 2003. That appeal was dismissed for lack of prosecution. We decline to exercise our discretion to determine the issues raised in the present appeals, which could have been raised on the appeal from the order dated March 13, 2003 (see Midlantic Commercial Leasing Corp. v Levin, 22 AD3d 727 [2005]).

The defendant’s remaining contentions are without merit. Krausman, J.P., Luciano, Fisher and Dillon, JJ., concur.

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In an action, inter alia, for a judgment declaring the parties’ rights and obligations under a commercial lease, the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Knipel, J.), dated November 29, 2004, as, upon an order of the same court dated March 13, 2003, finding the defendant in contempt and imposing a fine, granted that branch of the plaintiff’s motion which was for leave to enter a judgment against the defendant pursuant to the prior order dated March 13, 2003.

Ordered that the order is affirmed insofar as appealed from, with costs.

It is well settled that a litigant may not raise any issue on 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 [1976]). Here, the defendant appealed from the order dated March 13, 2003. That appeal was dismissed for lack of prosecution. We decline to exercise our discretion to determine the issues raised in the present appeals, which could have been raised on the appeal from the order dated March 13, 2003 (see Midlantic Commercial Leasing Corp. v Levin, 22 AD3d 727 [2005]).

The defendant’s remaining contentions are without merit. Krausman, J.P., Luciano, Fisher and Dillon, JJ., concur.

Gihon, LLC v. 501 Second Street, LLC, 29 A.D.3d 630, 814 N.Y.S.2d 729 (N.Y. Ct. App. 2006).

Pincite

29 A.D.3d 630 (Gihon, LLC v. 501 Second Street, LLC) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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