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CHARLES GAMMAL, ET AL., APPELLANTS, v. La CASITA MILTA, INC., RESPONDENT.

DECISION ORDER

ORDERED that the appeal is dismissed, with costs.

The plaintiffs' appeal from the order dated August 4, 1999, denying their motion for summary judgment (Appellate Division Docket No. 1999-09320) was dismissed for failure to prosecute by decision and order of this court dated June 13, 2000. A litigant may not raise an issue on a subsequent appeal which could have been raised on a prior appeal that was dismissed for lack of prosecution (see, Bray v. Cox, 38 N.Y.2d 350; Downes v. Aran, 273 A.D.2d 435; Gallagher v. New York City Tr. Auth., 270 A.D.2d 228; TPZ Corp. v. Tsoukas, 264 A.D.2d 837; Hind v. Palermo, 262 A.D.2d 285). The dismissal of the prior appeal constituted an adjudication on the merits with respect to all issues that could have been reviewed therein, thus precluding review at this time (see, Rubeo v. National Grange Mut. Ins. Co., 93 N.Y.2d 750; Bray v. Cox, supra; Seeley v. Dallao Rest., 271 A.D.2d 677; Brown v. United Christian Evangelistic Assoc., 270 A.D.2d 378). While this court possesses the discretion to permit review in the interest of justice (see, Faricelli v. TSS Seedman's, Inc., 94 N.Y.2d 772; Vecchio v. Colangelo, 274 A.D.2d 469), such review should be exercised sparingly (see, Brosnan v. Behette, 243 A.D.2d 524, 527), and we decline to do so in this case (see, Matter of Keenan v. Albert, 273 A.D.2d 388).

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GAMMAL v. La CASITA MILTA, INC
(Dec 19, 2000)