Appellate procedure and such

Budoff v City of New York, 2018 NY Slip Op 05817 [2d Dept 2018]

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 Faricelli v TSS Seedman's, 94 NY2d 772, 774; Rubeo v National Grange Mut. Ins. Co., 93 NY2d 750; Bray v Cox, 38 NY2d 350; Green Tree Credit, LLC v Jelks, 120 AD3d 1299, 1300). Here, the plaintiff appealed from the order dated September 24, 2014, which granted the defendants' motions for summary judgment and directed dismissal of the complaint. In March 2016, this Court dismissed the plaintiff's appeal from that order for failure to perfect in accordance with the rules of this Court (see 22 NYCRR 670.8[h]). In the order appealed from, the Supreme Court, in effect, granted the plaintiff's motion to reargue his opposition to the defendants' motions for summary judgment and, upon reargument, adhered to its original determination in the order appealed from dated August 20, 2015. While the better practice would have been for the plaintiff to withdraw the prior appeal, rather than abandon it, we nevertheless exercise our discretion to review the issues raised on the appeal from the order made upon reargument (see Ismail v Burnbury, 118 AD3d 756, 757; Franco v Breceus, 70 AD3d 767, 768; Neuburger v Sidoruk, 60 AD3d 650, 652).

Note: "As the Supreme Court reviewed the merits of the plaintiff's contentions raised in his motion for leave to reargue, "the court, in effect, granted reargument and adhered to its original determination" (NYCTL 1998-2 Trust v Michael Holdings, Inc., 77 AD3d 805, 806). Accordingly, contrary to the City's contention, the order dated August 20, 2015, "made, in effect, upon reargument, is appealable" (id. at 806; see Matter of Mattie M. v Administration for Children's Servs., 48 AD3d 392, 393; Rivera v Glen Oaks Vil. Owners, Inc., 29 AD3d 560, 561)." 


And, in the First Department: Oparaji v Yablon159 AD3d 539 [1st Dept. 2018] ("Since the court addressed the merits of plaintiffs' motion for reargument, it effectively granted the motion, and we treat the order that decided the motion as appealable (see Jones v City of New York, 146 AD3d 690 [1st Dept 2017]).")


U.S. Bank N.A. v Quinones, 2018 NY Slip Op 05955 [2d Dept 2018]

The defendant's appeal from so much of the first order as denied his motion to stay further proceedings pending the determination of his prior appeal must be dismissed. The only basis on which the defendant requested the stay was to await the determination of his appeal from the order dated March 12, 2015. That appeal has since been dismissed based on the defendant's failure to prosecute. Therefore, the relief requested by the defendant is no longer available, and the reversal of so much of the first order as denied the defendant's motion for a stay pending the determination of the appeal would not affect the defendant's rights (see Taub v Schon, 148 AD3d 1202, 1203; DeFilippo v Miller, 106 AD3d 770, 770-771). Moreover, the defendant's arguments regarding why the Supreme Court should have vacated his default in answering or appearing in the action could have been raised on his appeal from the order dated March 12, 2015. The dismissal of that appeal for failure to prosecute constitutes an adjudication on the merits of all claims that could have been raised on that appeal (see NP Funding II v Newsome, 258 AD2d 445, 446, citing Bray v Cox, 38 NY2d 350, 355), and we decline to exercise our discretion to consider such issues (see Berezyuk v City of New York, 102 AD3d 901, 902).

The bold is mine.

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

%d bloggers like this: