710 Linden v. Brown , 771 N.Y.S.2d 728 ( 2004 )

In an action for the specific performance of a contract for the sale of real property, the defendant appeals from an order and judgment (one paper) of the Supreme Court, Kings County (G. Aronin, J.), dated March 6, 2003, which granted that branch of the plaintiffs motion which was to compel the defendant to close on the subject property.

Ordered that the appeal is dismissed, with costs.

As a general rule, we do not consider any issue raised on a subsequent appeal that was raised, or could have been raised on a prior appeal which was dismissed for failure to prosecute although we have the inherent jurisdiction to do so (see Rubeo v National Grange Mut. Ins. Co., 93 NY2d 750 [1999]; Bray v Cox, 38 NY2d 350 [1976]). Here, the defendant appealed from an order dated November 28, 2001, which granted the plaintiffs prior cross motion to direct him to close on the subject real property. That appeal (App Div Docket No. 2002-00727) was dismissed by decision and order on motion of this Court dated November 12, 2002, for failure to prosecute. The dismissal for lack of prosecution is a ground for dismissal of the instant appeal, which raises issues which could have been raised on the prior appeal (see Rubeo v National Grange Mut. Ins. Co., supra). Santucci, J.E, Smith, Luciano and Adams, JJ., concur.