Opinion
2000-10902
Submitted November 7, 2001
December 3, 2001.
In an action for a judgment declaring, inter alia, that the plaintiff is not obligated to provide insurance coverage for the no-fault claims of the defendants, the defendant Craig Keels appeals from a judgment of the Supreme Court, Westchester County (Scarpino, J.), entered October 18, 2000, which, upon an order of the same court entered June 29, 2000, granting the plaintiff's motion for summary judgment insofar as asserted against him, declared, among other things, that the plaintiff is not obligated to provide insurance coverage to him.
Gregory Peck, New York, N.Y. (David E. Waterbury of counsel), for appellant.
Goldberg Associates, New York, N.Y. (Andreas E. Theodosiou of counsel), for respondent.
Before: FRED T. SANTUCCI, J.P., MYRIAM J. ALTMAN, ANITA R. FLORIO, HOWARD MILLER, BARRY A. COZIER, JJ.
DECISION ORDER
ORDERED that the appeal is dismissed, with costs.
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). Here, the defendant Craig Keels appealed from the order of the Supreme Court, Westchester County, dated December 7, 1999, which determined that he was not a passenger in the defendant Calvin's Powell's vehicle at the time of the subject accident. That appeal (Appellate Division Docket No. 2000-01714) was dismissed by decision and order of this Court dated December 21, 2000, for failure to prosecute. The dismissal for lack of prosecution bars the instant appeal which raises issues which could have been raised on the prior appeal (see, Rubeo v. National Grange Mut. Ins. Co., 93 N.Y.2d 750; Bray v. Cox, supra).
SANTUCCI, J.P., ALTMAN, FLORIO, H. MILLER and COZIER, JJ., concur.