Opinion
2002-02456
Argued February 20, 2003.
March 17, 2003.
In an action to recover damages for personal injuries, etc., the defendant appeals from a judgment of the Supreme Court, Westchester County (Bellantoni, J.), dated January 30, 2002, which, upon a jury verdict, is in favor of the plaintiffs and against him in the principal sum of $107,284.30.
Boeggeman, George, Hodges Corde, P.C., White Plains, N.Y. (Leslie K. Arfine and Cynthia Dolan of counsel), for appellant.
Goldblatt Associates, New York, N.Y. (Kenneth Goldblatt and Spencer Fein of counsel), for respondents.
Before: MYRIAM J. ALTMAN, J.P., GABRIEL M. KRAUSMAN, LEO F. McGINITY, BARRY A. COZIER, JJ.
DECISION ORDER
ORDERED that the appeal is dismissed, without costs or disbursements.
As a general rule, we do not consider an 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 N.Y.2d 750; Bray v. Cox, 38 N.Y.2d 350). Here, the defendant appealed from a prior order of the Supreme Court entered October 16, 2001, which denied his motion pursuant to CPLR 4404(a) to set aside the jury verdict on the ground that the plaintiff did not sustain a serious injury and for judgment in his favor as a matter of law. That appeal (Appellate Division Docket No. 2001-09535) was dismissed by decision and order on motion of this court, dated July 12, 2002, for failure to prosecute. Under the circumstances of this case, 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).
ALTMAN, J.P., KRAUSMAN, McGINITY and COZIER, JJ., concur.