Arichavala v. Screen Tech

In an action to recover damages for personal injuries and wrongful death, the defendant Joseph Zuccarello appeals from so much of an order of the Supreme Court, Kings County (Clemente, J.), dated February 23, 2001, as, upon reargument, denied that branch of his prior motion which was, in effect, for summary judgment dismissing the complaint insofar as asserted against him.

Ordered that the appeal is dismissed, with costs.

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 NY2d 350). Here, the appellant appealed from a prior order of the Supreme Court, Kings County, dated August 20, 1999, which, inter alia, denied that branch of his prior motion which was, in effect, for summary judgment dismissing the complaint insofar as asserted against him. By decision and order of this Court dated December 21, 2000, that appeal was dismissed for failure to prosecute (App Div Docket No. 2000-04462). The dismissal for lack of prosecution bars the instant appeal which raises issues that could have been raised on the prior appeal (see, Rubeo v National Grange Mut. Ins. Co., 93 NY2d 750; Bray v Cox, supra). Ritter, Acting P.J., Feuerstein, Goldstein, Friedmann and Crane, JJ., concur.