Opinion
2016–01045 Index No. 30248/11
08-01-2018
In the MATTER OF VERA B. (Anonymous). Deborah Chadow, respondent; v. Gerald M. Hertz, appellant.
Sim & Record, LLP, Bayside, N.Y. (Sang J. Sim of counsel), for appellant. John Newman, Huntington, NY, for respondent.
Sim & Record, LLP, Bayside, N.Y. (Sang J. Sim of counsel), for appellant.
John Newman, Huntington, NY, for respondent.
LEONARD B. AUSTIN, J.P., SHERI S. ROMAN, JEFFREY A. COHEN, BETSY BARROS, JJ.
DECISION & ORDER
In a proceeding pursuant to Mental Hygiene Law article 81, Gerald M. Hertz appeals from an order of the Supreme Court, Nassau County (Arthur M. Diamond, J.), dated November 18, 2015. The order denied the motion of Gerald M. Hertz to vacate a judgment of the same court dated August 14, 2015, and for leave to amend his answer to the petition.
ORDERED that the appeal is dismissed, with costs.
As a general rule, this Court does not consider any issue raised on a subsequent appeal that could have been raised in an earlier appeal that 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, 754, 697 N.Y.S.2d 866, 720 N.E.2d 86 ; Bray v. Cox, 38 N.Y.2d 350, 353, 379 N.Y.S.2d 803, 342 N.E.2d 575 ; Citimortgage, Inc. v. Kidd, 148 A.D.3d 767, 768, 49 N.Y.S.3d 482 ; Directional Lending, LLC v. Guerrera, 147 A.D.3d 909, 48 N.Y.S.3d 167 ; Green Tree Credit, LLC v. Jelks, 120 A.D.3d 1299, 1300, 991 N.Y.S.2d 903 ; Matter of Curtis & Assoc., P.C. v. Callaghan, 119 A.D.3d 782, 783, 991 N.Y.S.2d 55 ). Here, the appellant, Gerald M. Hertz, failed to perfect an appeal from a judgment dated August 14, 2015, which was in favor of the petitioner guardian and against him in the principal sum of $135,000. That appeal was dismissed as abandoned by decision and order on motion of this Court dated September 19, 2016. That dismissal constituted an adjudication on the merits with respect to all issues which could have been reviewed on that appeal (see Spiritis v. Village of Hempstead Community Dev. Agency, 63 A.D.3d 907, 880 N.Y.S.2d 543 ). We decline to exercise our jurisdiction to determine the merits of the present appeal since the issues it raises could have been raised on the appeal from the prior judgment that was dismissed for failure to perfect (see Bray v. Cox, 38 N.Y.2d at 350, 379 N.Y.S.2d 803, 342 N.E.2d 575 ; Directional Lending, LLC v. Guerrera, 147 A.D.3d at 909, 48 N.Y.S.3d 167 ; Green Tree Credit, LLC v. Jelks, 120 A.D.3d at 1300, 991 N.Y.S.2d 903 ; Matter of Curtis & Assoc., P.C. v. Callaghan, 119 A.D.3d at 783, 991 N.Y.S.2d 55 ; Spiritis v. Village of Hempstead Community Dev. Agency, 63 A.D.3d at 907, 880 N.Y.S.2d 543 ).
AUSTIN, J.P., ROMAN, COHEN and BARROS, JJ., concur.