OSBY v. SPRING CREEK REHABILITATION AND NURSING CARE CENTER (2024)

DECISION & ORDER

In an action, inter alia, to recover damages for medical malpractice, the plaintiff appeals from a clerk's judgment of the Supreme Court, Kings County, entered August 23, 2021.  The clerk's judgment, upon an order of the same court (Genine D. Edwards, J.) dated July 1, 2019, granting the defendant's motion for summary judgment dismissing the complaint, is in favor of the defendant and against the plaintiff dismissing the complaint.

Motion by the respondent to dismiss the appeal pursuant to Bray v. Cox (38 N.Y.2d 350) and to impose costs and sanctions upon the appellant.  By decision and order on motion of this Court dated February 2, 2022, the motion was held in abeyance and referred to the panel of Justices hearing the appeal for determination upon the argument or submission thereof.

Upon the papers filed in support of the motion and the papers filed in opposition thereto, and upon the argument of the appeal, it is

ORDERED that the branch of the motion which is to dismiss the appeal is granted;  and it is further,

ORDERED that the branch of the motion which is to impose costs and sanctions upon the appellant is denied;  and it is further,

ORDERED that the appeal is dismissed;  and it is further,

ORDERED that one bill of costs is awarded to the respondent.

As a general rule, we do not consider an issue on a subsequent appeal that was raised or could have been raised in an earlier appeal that was dismissed for lack of prosecution, although this Court has the inherent jurisdiction to do so (see NYCTL 1996–1 Trust v. 5200 Enters.  Ltd., 219 AD3d 617, 619;  Kapsis v. Peragine, 96 AD3d 804, 805).  The plaintiff previously appealed from an order dated July 1, 2019, which granted the defendant's motion for summary judgment dismissing the complaint, but that appeal was deemed dismissed without further action for failure to perfect.  The issues raised by the plaintiff could have been raised on the prior appeal from the order dated July 1, 2019, and we decline to exercise our discretion to determine the merits of the instant appeal from the judgment entered on August 23, 2021 (see Bray v. Cox, 38 N.Y.2d 350;  NYCTL 1996–1 Trust v. 5200 Enters.  Ltd., 219 AD3d at 619;  Kapsis v. Peragine, 96 AD3d at 805).

We decline the defendant's request for the imposition of sanctions against the plaintiff based upon allegedly frivolous conduct on this appeal (see 22 NYCRR 130–1.1[a], [c];  Kapsis v. Peragine, 96 AD3d at 805).

LASALLE, P.J., CHRISTOPHER, FORD and LOVE, JJ., concur.