Sabba v. Jen Kuo Chen

Appellate Division of the Supreme Court of New York

Sabba v. Jen Kuo Chen

12 A.D.3d 435, 783 N.Y.S.2d 826, 2004 N.Y. App. Div. LEXIS 13371

Appellate Division of the Supreme Court of the State of New York·Decided November 8, 2004·Published·Cited by 1 cases

Opinion

In an action to foreclose a mortgage, the defendant Jing Chun-Wu appeals from an order of the Supreme Court, Queens County (Price, J.), dated August 22, 2003, which denied her motion for an evidentiary hearing.

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

As a general rule, we do not consider any issue on a subsequent appeal that was raised, or could have been raised, in 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]). The issues that the appellant raises on this appeal could have been raised on her prior appeal from a 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 [2000]; see Rubeo v National Grange Mut. Ins. Co., supra; Bray v Cox, supra). Ritter, J.P., Goldstein, Adams and Crane, JJ., concur.

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In an action to foreclose a mortgage, the defendant Jing Chun-Wu appeals from an order of the Supreme Court, Queens County (Price, J.), dated August 22, 2003, which denied her motion for an evidentiary hearing.

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

As a general rule, we do not consider any issue on a subsequent appeal that was raised, or could have been raised, in 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]). The issues that the appellant raises on this appeal could have been raised on her prior appeal from a 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 [2000]; see Rubeo v National Grange Mut. Ins. Co., supra; Bray v Cox, supra). Ritter, J.P., Goldstein, Adams and Crane, JJ., concur.

Sabba v. Jen Kuo Chen, 12 A.D.3d 435, 783 N.Y.S.2d 826, 2004 N.Y. App. Div. LEXIS 13371 (N.Y. Ct. App. 2004).

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Opinion

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