Madison Realty Capital, L.P. v. Broken Angel, LLC

107 A.D.3d 766, 966 N.Y.S.2d 682

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 12, 2013
• Status: Published

Opinion

In an action to foreclose a mortgage, the defendant Arthur Wood appeals from a judgment of foreclosure and sale of the Supreme Court, Kings County (Bayne, J.), dated January 10, 2012, which, inter alia, directed the sale of the subject premises.

Ordered that the appeal is dismissed, without costs or disbursements.

As a general rule, we do not consider an issue on a subsequent appeal which was raised or could have been raised in an earlier appeal which was dismissed for lack of prosecution, although this Court has 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]). The defendant Arthur Wood appealed from an order dated August 5, 2010, which granted a motion by the plaintiff for, inter alia, summary judgment on the complaint in this mortgage foreclosure action. However, that appeal was dismissed by decision and order on motion of this Court dated April 26, 2011, for failure to timely perfect. We decline to exercise our discretion to determine the merits of the instant appeal, which raises the same issues that could have been raised on the appeal from the order granting the plaintiffs motion, inter alia, for summary judgment (see Bray v Cox, 38 NY2d at 353-356). Mastro, J.P., Leventhal, Sgroi and Miller, JJ., concur.