Helen Gurman, et al., respondents, v. Daphne M.N. Fotiades, et al., appellants.

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

Helen Gurman, et al., respondents, v. Daphne M.N. Fotiades, et al., appellants.

2008-09354 (Index No. 273/02)

Decided: May 25, 2010

STEVEN W. FISHER, J.P. MARK C. DILLON THOMAS A. DICKERSON RANDALL T. ENG, JJ. Daphne M.N. Fotiades, Northport, N.Y., appellant pro se. Lewin & Baglio, LLP, Melville, N.Y. (Michael A. Zimmerman of counsel), for appellant David Moskoff. Malen & Associates, Westbury, N.Y. (Timothy J. Murtha and Jeffrey Wolstein of counsel), for respondents.

Argued-April 6, 2010


In an action to recover on two instruments for the payment of money only, brought by motion for summary judgment in lieu of complaint pursuant to CPLR 3213, the defendants separately appeal from an order of the Supreme Court, Suffolk County (Pastoressa, J.), dated September 5, 2008, which denied their motion to vacate a judgment of the same court (Klein, J.), entered August 13, 2003, which, upon an order dated June 5, 2002, granting the plaintiffs' motion for summary judgment, was in favor of the plaintiffs and against them in the principal sum of $20,000.

ORDERED that the appeals are dismissed, with one bill of costs payable by the appellants appearing separately and filing separate briefs.

As a general rule, we do not consider an issue on a subsequent appeal which was raised or could have been raised in an earlier appeal which was dismissed for lack of prosecution, although the 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).   While this Court possesses the discretion to permit review in the interest of justice (see Faricelli v. TSS Seedman's, 94 N.Y.2d 772;  Vecchio v. Colangelo, 274 A.D.2d 469), such review should be exercised sparingly (see Gammal v. La Casita Milta, 278 A.D.2d 364).   The defendants previously appealed from an order dated February 3, 2004, which denied a prior motion to vacate the judgment entered August 13, 2003.   That appeal was dismissed by decision and order on motion of this Court dated November 3, 2004, for failure to prosecute in accordance with the rules of this Court, and that dismissal constituted an adjudication on the merits with respect to all issues which could have been reviewed on that appeal.   We decline to exercise our discretion to determine the merits of the instant appeals, which raise the same issues as could have been raised on the prior appeal (see Bray v. Cox, 38 N.Y.2d 350;  Blue Chip Mtge. Corp. v. Strumpf, 50 AD3d 936;  Matter of Talt v. Murphy, 35 AD3d 486;  Hepner v. New York City Tr. Auth., 27 AD3d 418).



James Edward Pelzer

Clerk of the Court

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