rare appellate procedure

Thomas v Kiriluk, 2012 NY Slip Op 03631 (2nd Dept., 2012)

"As a general rule, this Court does not consider an issue on a subsequent appeal which was raised or could have been raised in an earlier appeal which was dismissed for lack of prosecution, although the Court has the inherent jurisdiction to do so" (Kitt v Podlofsky, 72 AD3d 1030, 1031; see Bray v Cox, 38 NY2d 350). Here, the plaintiffs appealed from an order dated November 10, 2010, which granted the defendants' motion for summary judgment dismissing the complaint, but the appeal was dismissed by decision and order on motion of this Court dated October 24, 2011, for failure to prosecute. Nevertheless, under the circumstances, we exercise our discretion to review the issues raised by the plaintiffs on their appeal from the judgment (see Kitt v Podlofsky, 72 AD3d at 1031).

Kalafatis v Royal Waste Servs., Inc., 2012 NY Slip Op 03603 (2nd Dept., 2012)

As a general rule, this Court does not consider an issue on a subsequent appeal which was raised or 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, 754; Bray v Cox, 38 NY2d 350, 353). While the better practice would have been for the plaintiff to withdraw the prior appeal rather than abandon it, nonetheless, we exercise our discretion to review the issues raised on the appeal from so much of the order dated April 27, 2011, as was made upon reargument (see Franco v Breceus, 70 AD3d 767; Newburger v Sidoruk, 60 AD3d 650; DiGiaro v Agrawal, 41 AD3d 764; Cesar v Highland Care Ctr., Inc., 37 AD3d 393).

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