Arkadiy Bashkatov, appellant v. CHERNETSKYY (2023)

DECISION & ORDER

In an action, inter alia, to recover damages for breach of contract, the plaintiff Arkadiy Bashkatov appeals from a judgment of the Supreme Court, Kings County (Richard Velasquez, J.), dated June 3, 2019.  The judgment, upon an order of the same court dated June 13, 2018, is in favor of the defendant and against the plaintiffs in the principal sum of $50,000.

ORDERED that the appeal is dismissed, without costs or disbursements.

The plaintiffs commenced this action, inter alia, to recover damages for breach of contract alleging that the defendant breached a contract to sell the plaintiff Alisa Auto Service, Inc. (hereinafter Alisa Auto), to the plaintiffs Arkadiy Bashkatov and Robert Rubinshteyn (hereinafter together the buyers) for the total sum of $75,000, payable in three installment payments.  By order dated June 13, 2018, the Supreme Court, inter alia, directed the buyers to make two installment payments totaling $50,000 to the defendant.  The plaintiffs filed a notice of appeal from that order.  However, they failed to timely perfect their appeal, and the appeal was deemed dismissed (see 22 NYCRR 1250.10[a]).  On June 3, 2019, a judgment was entered upon the order dated June 13, 2018, in favor of the defendant and against the plaintiffs in the principal sum of $50,000.  Bashkatov appeals from the judgment.

As an initial matter, the appeal by Bashkatov from so much of the judgment as is in favor of the defendant and against Rubinshteyn and Alisa Auto in the principal sum of $50,000, must be dismissed, as Bashkatov is not aggrieved by those portions of the judgment (see CPLR 5511;  see generally Mixon v. TBV, Inc., 76 AD3d 144).

The appeal by Bashkatov from so much of the judgment as is in favor of the defendant and against him in the principal sum of $50,000, must also be dismissed, albeit on a different ground.  The issues presented on the appeal from this portion of the judgment could have been raised by Bashkatov on the earlier appeal from the order dated June 13, 2018.  As a general rule, this Court does not consider any issue raised on a subsequent appeal that could have been raised on an earlier appeal that was dismissed for lack of prosecution, although this Court has the 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, we decline to exercise our discretion to review those issues on this appeal (see Meak v. Properties Pursuit, Inc., 186 AD3d 701, 702).

Accordingly, we dismiss the appeal in its entirety.

DILLON, J.P., CHAMBERS, FORD and WAN, JJ., concur.