Maksuta v Galiatsatos, 2009 NY Slip Op 04033 (App. Div., 2nd, 2009)
As a general rule, this Court does not consider an issue on a subsequent appeal which was [*2]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 (see Rubeo v National Grange Mut. Ins. Co., 93 NY2d 750; Bray v Cox, 38
NY2d 350). The plaintiffs appealed from the order dated March 7, 2007,
which, inter alia, granted that branch of the motion of the defendant
Sorbara Construction Corp. (hereinafter Sorbara) which was for summary
judgment dismissing the complaint insofar as asserted against it, but
abandoned that appeal after the Supreme Court, in an order dated
February 6, 2008, made, in effect, upon renewal and reargument, adhered
to the original determination. As a consequence of the plaintiffs'
failure timely to perfect their appeal from the order dated March 7,
2007, that appeal was dismissed for failure to prosecute. The better
practice would have been for the plaintiffs to withdraw their prior
appeal, rather than abandon it. Nonetheless, under the circumstances,
we exercise our discretion to review the issues raised on the
plaintiffs' appeal from the order made, in effect, upon renewal and
reargument (see generally Cesar v Highland Care Ctr., Inc., 37 AD3d 393).
The Supreme Court, in effect, upon renewal and reargument,
properly adhered to its original determination. Sorbara established,
prima facie, that its alleged negligence was not a proximate cause of
the accident (see generally Derdiarian v Felix Contr. Corp., 51 NY2d 308; Mannion v Lizza Indus., 127
AD2d 567). In opposition, the plaintiffs and the defendants C.
Galiatsatos, a/k/a Chrisostomos Galiatsatos, and Pavlos Galiatsatos,
failed to raise a triable issue of fact.
…
Motion by the respondent to dismiss an appeal by the plaintiffs from an
order of the Supreme Court, Kings County, dated February 6, 2008, on
the ground that review of the order is precluded by the doctrine
enunciated in Rubeo v National Grange Mut. Ins. Co. (93 NY2d 750) and Bray v Cox (38
NY2d 350). By decision and order on motion of this Court dated August
21, 2008, the motion was held in abeyance and was referred to the panel
of Justices hearing the appeal for determination upon the argument or
submission of the appeal.
Xi Fang Temple v Hopetel, LLC, 2009 NY Slip Op 04053 (App. Div., 2nd, 2009)
As a general matter, this Court does not consider any issue raised on a
subsequent appeal that was raised, or could have been raised, in an
earlier appeal that was dismissed for lack of prosecution, although the
Court has the inherent jurisdiction to do so (see Rubeo v National Grange Mut. Ins. Co., 93 NY2d 750, 756; Bray v Cox, 38 NY2d 350, 353; Matter of City of New York, S. Jamaica I Urban Renewal Area, 41 AD3d 595).
Here, the plaintiff previously appealed from the order and judgment
entered March 22, 2006, in which the Supreme Court determined, inter
alia, that the agreement between the parties did not satisfy the
statute of frauds and, therefore, was not enforceable as a real estate
sales contract, and dismissed the second amended complaint. That appeal
was dismissed for failure to prosecute by decision and order on motion
of this Court dated August 13, 2007. The dismissal of that appeal
constituted an adjudication on the merits with respect to all issues
regarding the agreement that could have been reviewed therein, and
there is no basis to review the same issues on this appeal (see Rubeo v National Grange Mut. Ins. Co., 93 NY2d at 756; Matter of Talt v Murphy, 35 AD3d 486; Motelson v Candon Ct. Homeowners Assn., [*2]Inc., 34 AD3d 543, 543-544). Accordingly, we dismiss the plaintiff's current appeal.
The bold is mine.
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