Harry's Nurses Registry, Inc. v. Jen Kuo Chen

57 A.D.3d 733, 868 N.Y.2d 903

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 16, 2008
• Status: Published

Opinion

As a general rule, we do not consider any issue on a subsequent appeal that was raised, or could have been raised, on a prior appeal that was dismissed for failure to prosecute, 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]). As was the case on the appellant’s prior appeal (see Sabba v Jen Kuo Chen, 12 AD3d 435 [2004]), the issues that the appellant raises on this appeal could have been raised on her appeal from the judgment of foreclosure and sale dated May 1, 2000, which this Court dismissed for failure to prosecute by decision and order on motion dated September 11, 2002. “The dismissal of the prior appeal constituted an adjudication on the merits with respect to all issues that could have been reviewed therein,” and we decline to review those issues on this appeal (Gammal v La Casita Milta, 278 AD2d 364, 364 [2000]; see Rubeo v National Grange Mut. Ins. Co., 93 NY2d 750 [1999]; Bray v Cox, 38 NY2d 350 [1976]). Mastro, J.E, Florio, Eng and Chambers, JJ., concur.