Urena v. Ciampa Estates, LLC

89 A.D.3d 1012, 933 N.Y.2d 341

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 22, 2011
• Status: Published

Opinion

We decline to address the contention of the third-party defendant, Sanita Construction Co., Inc. (hereinafter Sanita), that the defendant third-party plaintiff, Ciampa Estates, LLC, is not entitled to contractual indemnification because no finding of negligence on Sanita’s part was made. Sanita failed to perfect an appeal from an order dated November 6, 2009, which addressed this issue. As a general rule, we do not consider any issue raised on a subsequent appeal that could have been raised in an earlier appeal which was dismissed for lack of prosecution (see Bray v Cox, 38 NY2d 350 [1976]), although we have the inherent jurisdiction to do so (see Deutsche Bank Natl. Trust Co. v Matheson, 77 AD3d 883, 884 [2010]). Sanita has not demonstrated any basis for the exercise of such discretion.

Sanita’s remaining contentions are not properly before this Court. Rivera, J.P, Angiolillo, Belen and Roman, JJ., concur.