DECISION ORDER
ORDERED that the appeal is dismissed, with costs to the plaintiffs.
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; Brosnan v. Behette, 243 A.D.2d 524; Rosen v. Rosen, 193 A.D.2d 661). Here, the defendants appealed from an order dated December 5, 1997, which granted the plaintiffs' motion for summary judgment. However, that appeal was dismissed by decision and order of this court dated October 5, 1998, for failure to perfect. The dismissal for lack of prosecution acts as a bar to the instant appeal which raises the identical issues ( see, Bray v. Cox, supra, at 353). In any event, the record reveals that the defendants failed to cancel the real estate contract at issue in accordance with its substantive and procedural terms. Accordingly, the Supreme Court properly granted summary judgment to the plaintiffs for the amount of the down payment ( see, Marten Bldrs. v. Lo Galbo, 68 N.Y.2d 373).