Green Tree Credit, LLC v. Jelks

In an action to foreclose a mortgage, the defendant Godfrey Jelks appeals from a judgment of foreclosure and sale of the Supreme Court, Kings County (Schmidt, J.), dated April 1, 2011, which, inter alia, directed the sale of the subject premises.

Ordered that the judgment is affirmed, with costs.

The appellant, Godfrey Jelks, failed to perfect an appeal from an order dated December 23, 2009, which, inter alia, granted the plaintiffs motion for summary judgment on the complaint insofar as asserted against him. As a general rule, we do not consider any issue raised on a subsequent appeal that could have been raised in an earlier appeal which 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 NY2d 750 [1999]; Bray v Cox, 38 NY2d 350 [1976]; Madison Realty Capital, L.P. v Broken Angel, LLC, 107 AD3d 766 [2013]). We decline to exercise our jurisdiction to determine the merits of the present appeal to the extent that it raises issues that could have been raised on the appeal from the prior order that was dismissed for failure to perfect (see Bray v Cox, 38 NY2d at 350 ; Spiritis v Village of Hempstead Community Dev. Agency, 63 AD3d 907 [2009]).

The appellant’s remaining contention is without merit.

Dillon, J.E, Chambers, Hall and Maltese, JJ, concur.