As a general rule, an appellate court will not consider an issue on a subsequent appeal that was raised or could have been raised in an earlier appeal, where such earlier appeal was dismissed for lack of prosecution, since the prior dismissal constituted a determination on the merits (see Rubeo v. National Grange Mut. Ins. Co., 93 N.Y.2d 750 [1999]). Although the Appellate Division possesses discretion to permit review in the interest of justice, such review is exercised sparingly (see Gurman v. Fotiades, 73 A.D.3d 1126, 1126-27 [2d Dept., 2010]).
In Mosby v. Parilla, decided June 29, 2016, the court recognized a different rule in cases where a prior appeal has been dismissed as untimely. In such cases, the court in Mosby held, the prior dismissal “does not constitute an adjudication on the merits with respect to all issues which could have been reviewed on that appeal” (140 A.D.3d 1129, 1131 [2d Dept.] [citations omitted]). Thus, the aggrieved party may appeal from any subsequent judgment or order in the case that raises the same issues as the previously dismissed appeal.
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