Opinion
2005-880 Q C.
Decided January 5, 2006.
Appeal from an order of the Civil Court of the City of New York, Queens County (Pam B. Jackman-Brown, J.), entered November 10, 2004. The order denied Steven Green's motion to vacate the default judgments entered November 29, 1989 and the orders of contempt entered March 1, 1990.
Appeal unanimously dismissed.
PRESENT:: PESCE, P.J., WESTON PATTERSON and GOLIA, JJ
Steven Green moved in the court below to vacate the default judgments and orders entered November 29, 1989 and March 1, 1990. Said motions were denied on January 5, 1990 and June 18, 1990, respectively. Steven Green appealed the orders of denial. The appeals were thereafter dismissed for lack of prosecution. It is well settled that a litigant may not raise an issue on a subsequent appeal which could have been raised on a prior appeal that was dismissed for lack of prosecution ( see Bray v. Cox, 38 NY2d 350; Sabba v. Jen Kuo Chen, 12 AD3d 435; Gammal v. La Casita Milta, 278 AD2d 364; Downs v. Aran, 273 AD2d 435; Gallagher v. New York City Tr. Auth., 270 AD2d 228; TPZ Corp. v. Tsoukas, 264 AD2d 837; Hind v. Palermo, 262 AD2d 285; Siegel, NY Prac § 542, at 935-937 [4th ed]). Since dismissal of the prior appeals constituted an adjudication on the merits with respect to all issues that could have been reviewed therein, a review of such issues on the instant appeal is precluded ( see Rubeo v. National Grange Mut, Ins. Co., 93 NY2d 750; see also Bray v. Cox, 38 NY2d 350, supra). Although this court possesses discretion to permit review in the interest of justice ( see Faricelli v. TSS Seedman's, Inc., 94 NY2d 772; Vecchio v. Colangelo, 274 AD2d 469), such review should be exercised sparingly ( Gammal v. La Casita Milta, 278 AD2d 364, supra) and we decline to do so in the case at bar.