Weinstein v. State

Appellate Division of the Supreme Court of New York

Weinstein v. State

294 A.D.2d 586, 742 N.Y.S.2d 892, 2002 N.Y. App. Div. LEXIS 5525

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 28, 2002

StatusPublished

Cited by1 cases

This text of 294 A.D.2d 586 (Weinstein v. State) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Weinstein v. State, 294 A.D.2d 586, 742 N.Y.S.2d 892, 2002 N.Y. App. Div. LEXIS 5525 (N.Y. Ct. App. 2002).

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Opinion

—In a proceeding pursuant to Court of Claims Act § 10 (6) for leave to file a late claim, the claimant appeals from an order of the Court of [587]*587Claims (Marin, J.), dated February 13, 2001, which denied his motion, inter alia, for leave to renew his prior application for leave to file a late claim, which was denied by an order of the same court dated September 26, 2000.

Ordered that the appeal is dismissed, with costs.

As a general rule, we do not consider any issue raised on a subsequent appeal that was raised, or could have been raised, in an earlier appeal which was dismissed for lack of prosecution, although we have inherent jurisdiction to do so (see Rubeo v National Grange Mut. Ins. Co., 93 NY2d 750; Bray v Cox, 38 NY2d 350). Here, the claimant appealed from a prior order of the Court of Claims dated September 26, 2000, which denied his application for leave to file a late claim. That appeal (App Div Docket No. 2000-10690) was dismissed by decision and order on motion of this Court, dated August 2, 2001, for failure to prosecute. The dismissal for lack of prosecution bars the instant appeal which raises issues which could have been raised on the prior appeal (see, Rubeo v National Grange Mut. Ins. Co., supra; Bray v Cox, supra). Prudenti, P.J., Florio, S. Miller, Friedmann and Adams, JJ., concur.

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—In a proceeding pursuant to Court of Claims Act § 10 (6) for leave to file a late claim, the claimant appeals from an order of the Court of [587]*587Claims (Marin, J.), dated February 13, 2001, which denied his motion, inter alia, for leave to renew his prior application for leave to file a late claim, which was denied by an order of the same court dated September 26, 2000.

Ordered that the appeal is dismissed, with costs.

As a general rule, we do not consider any issue raised on a subsequent appeal that was raised, or could have been raised, in an earlier appeal which was dismissed for lack of prosecution, although we have inherent jurisdiction to do so (see Rubeo v National Grange Mut. Ins. Co., 93 NY2d 750; Bray v Cox, 38 NY2d 350). Here, the claimant appealed from a prior order of the Court of Claims dated September 26, 2000, which denied his application for leave to file a late claim. That appeal (App Div Docket No. 2000-10690) was dismissed by decision and order on motion of this Court, dated August 2, 2001, for failure to prosecute. The dismissal for lack of prosecution bars the instant appeal which raises issues which could have been raised on the prior appeal (see, Rubeo v National Grange Mut. Ins. Co., supra; Bray v Cox, supra). Prudenti, P.J., Florio, S. Miller, Friedmann and Adams, JJ., concur.

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Bluebook (online)

294 A.D.2d 586, 742 N.Y.S.2d 892, 2002 N.Y. App. Div. LEXIS 5525, Counsel Stack Legal Research, https://law.counselstack.com/opinion/weinstein-v-state-nyappdiv-2002.

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