Opinion
Submitted November 21, 2000.
December 19, 2000.
In an action for the specific performance of the sale of real property, the plaintiffs appeal from an order of the Supreme Court, Kings County (Belen, J.), dated December 21, 1999, which upon, in effect, granting reargument, adhered to a prior order of the same court, dated August 4, 1999, denying their motion for summary judgment on the complaint.
Wachtel Masyr, LLP, New York, N.Y. (Jeffrey T. Strauss and David R. Foster of counsel), for appellants.
Spanakos Spanakos, Brooklyn, N.Y. (John Michael Spanakos of counsel), for respondent.
Before: DAVID S. RITTER, J.P., SONDRA MILLER, GLORIA GOLDSTEIN, NANCY E. SMITH, JJ.
DECISION ORDER
ORDERED that the appeal is dismissed, with costs.
The plaintiffs' appeal from the order dated August 4, 1999, denying their motion for summary judgment (Appellate Division Docket No. 1999-09320) was dismissed for failure to prosecute by decision and order of this court dated June 13, 2000. 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 N.Y.2d 350; Downes v. Aran, 273 A.D.2d 435; Gallagher v. New York City Tr. Auth., 270 A.D.2d 228; TPZ Corp. v. Tsoukas, 264 A.D.2d 837; Hind v. Palermo, 262 A.D.2d 285). The dismissal of the prior appeal constituted an adjudication on the merits with respect to all issues that could have been reviewed therein, thus precluding review at this time (see, Rubeo v. National Grange Mut. Ins. Co., 93 N.Y.2d 750; Bray v. Cox, supra; Seeley v. Dallao Rest., 271 A.D.2d 677; Brown v. United Christian Evangelistic Assoc., 270 A.D.2d 378). While this court possesses the discretion to permit review in the interest of justice (see, Faricelli v. TSS Seedman's, Inc., 94 N.Y.2d 772; Vecchio v. Colangelo, 274 A.D.2d 469), such review should be exercised sparingly (see, Brosnan v. Behette, 243 A.D.2d 524, 527), and we decline to do so in this case (see, Matter of Keenan v. Albert, 273 A.D.2d 388).