Utica Mutual Insurance v. Timms — 289 A.D.2d 223

Majority

p. 223

Utica Mutual Insurance Company, Respondent, v Duane Timms et al., Defendants, and Craig Keels, Appellant.

[734 NYS2d 468]

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.

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 NY2d 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

p. 224

time of the subject accident. That appeal (App Div 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 NY2d 750 ; Bray v Cox, supra). Santucci, J. P., Altman, Florio, H. Miller and Cozier, JJ., concur.

Cases cited

Bray v. Cox 38 NY2d 350 N.Y. 1976-01-08 p. 223
Rubeo v. National Grange Mutual Insurance 93 NY2d 750 N.Y. 1999-10-14 p. 224