TPZ CORPORATION v. TSOUKAS

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Supreme Court, Appellate Division, Second Department, New York.

TPZ CORPORATION, etc., respondent, v. Steven TSOUKAS, appellant, et al., defendants.

Decided: September 27, 1999

SONDRA MILLER, J.P., THOMAS R. SULLIVAN, WILLIAM D. FRIEDMANN and SANDRA J. FEUERSTEIN, JJ. J. Papapanayotou, Long Island City, N.Y., for appellant. Martin I. Gold, New York, N.Y., for respondent.

In an action to foreclose a mortgage, the defendant Steven Tsoukas appeals from (1) an order of the Supreme Court, Richmond County (Cusick, J.), dated July 1, 1998, which granted the plaintiff's motion pursuant to RPAPL 221 to evict him from certain premises, upon his default in opposing the motion, and (2) an order of the same court, also dated July 1, 1998, which granted the plaintiff's motion for leave to enter a deficiency judgment against him in the principal sum of $89,090.86, upon his default in opposing the motion.

ORDERED that the appeals are dismissed, with one bill of costs to the plaintiff.

 It is well settled that a litigant may not raise any issue on a subsequent appeal which was raised, or could have been raised, in an earlier appeal which was dismissed for lack of prosecution (see, Bray v. Cox, 38 N.Y.2d 350, 379 N.Y.S.2d 803, 342 N.E.2d 575;  Hind v Palermo, 262 A.D.2d 285, 691 N.Y.S.2d 551).   Here the appellant had appealed from a prior order of the Supreme Court, Richmond County, dated September 22, 1997, which denied his motion to vacate the judgment of foreclosure entered upon his default in appearing, and an order of the same court, dated February 11, 1998, which denied his motion for renewal and reargument.   However, those appeals were dismissed by decisions and orders of this court dated October 5, 1998, and November 18, 1998, respectively, for failure to perfect.   These dismissals for lack of prosecution act as a bar to the instant appeals which raise the same issues (see, Bray v. Cox, supra, at 353, 379 N.Y.S.2d 803, 342 N.E.2d 575).   Moreover, the orders now appealed from were entered upon the appellant's default in opposing the motions, and no appeal lies from orders entered upon the default of the aggrieved party (see, CPLR 5511;  Marquise Collection v. M.A.S. Textiles Corp., 239 A.D.2d 470, 657 N.Y.S.2d 207).

MEMORANDUM BY THE COURT.

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