Jpmorgan Chase Bank v. Schott

REINALDO E. RIVERA

Appeal dismissed.
Jeffrey I. Klein, White Plains, N.Y., for appellant. Parker Ibrahim & Berg LLC, New York, N.Y. (Anthony W. Vaughn, Jr., and Kashif I. Chand of counsel), for respondent.

In an action to foreclose a mortgage, the defendant Vicki Schott, also known as Vicki A. Mosello, also known as Vicki A. Schott, appeals from a judgment of foreclosure and sale of the Supreme Court, Westchester County (Lefkowitz, J.), dated September 5, 2012, which upon an order of the same court dated August 1, 2012, granting the plaintiff's motion for summary judgment on the complaint, directed the sale of the subject premises.

ORDERED that the appeal is dismissed, with costs.

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 this Court has the inherent jurisdiction to do so ( see Rubeo v. National Grange Mut. Ins. Co., 93 N.Y.2d 750, 697 N.Y.S.2d 866, 720 N.E.2d 86; Bray v. Cox, 38 N.Y.2d 350, 379 N.Y.S.2d 803, 342 N.E.2d 575). The defendant Vicki Schott, also known as Vicki A. Mosello, also known as Vicki A. Schott, appealed from an order dated August 1, 2012, which granted a motion by the plaintiff for summary judgment on the complaint in this mortgage foreclosure action. However, that appeal was dismissed by decision and order on motion of this Court dated May 3, 2013, for failure to timely perfect. We decline to exercise our discretion to determine the merits of the instant appeal, which raises the same issues that could have been raised on the appeal from the order granting the plaintiff's motion for summary judgment ( see Madison Realty Capital, L.P. v. Broken Angel, LLC, 107 A.D.3d 766, 767, 966 N.Y.S.2d 682; see also Bray v. Cox, 38 N.Y.2d at 353–356, 379 N.Y.S.2d 803, 342 N.E.2d 575).