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Court of Appeals 1999

93 N.Y.2d 750 (1999).

Decided October 14, 1999

Rubeo v. National Grange Mutual Ins.
93 N.Y.2d 750

Philip B. Murphy, for appellant.

John P. Meenagh, Jr., for respondent.


The core question before us is a practice issue that has recurred in varying forms: what is the consequence of abandoning an appeal and then, later in the litigation, filing a second appeal presenting the same issue? Consistent with ourprecedents, we conclude that the Appellate Division, in the circumstances presented, correctly dismissed the second appeal.

On March 31, 1990, plaintiff Thomas Rubeo contracted with Bedford Construction Management Corporation to build a house in Katonah, New York. Defendant National Grange Mutual Insurance Company ("NGM") insured Bedford. After the septic system installed in the house malfunctioned, plaintiff sued Bedford, alleging defective construction, and obtained a default judgment for $125,322.50. Unable to recover from Bedford, plaintiff in 1994 sued the insurer to collect the unsatisfied judgment. NGM moved for summary judgment, and on May 15, 1997, Supreme Court granted the motion, holding that the terms of the insurance policy specifically excluded coverage for the damage at issue. Plaintiff filed a notice of appeal and simultaneously sought reargument in Supreme Court, contending that the court had overlooked his argument that the insurer had failed to issue a timely disclaimer. On August 22, 1997, Supreme Court granted reargument, and upon reargument, adhered to its decision, holding that NGM had timely disclaimed liability. Plaintiff filed a second notice of appeal.

Plaintiff, however, failed to perfect his first appeal within six months, as required by the Appellate Division, Second Department ( see, 22 NYCRR 670.8[e]). Consequently, pursuant to 22 NYCRR 670.8(h), the Appellate Division included the appeal in a published list of cases that would be dismissed as abandoned unless a motion to extend the time to perfect were made within ten days. Plaintiff did not seek an enlargement of time, and on February 18, 1998, the Appellate Division dismissed the appeal for failure to prosecute.

On February 27, 1998, plaintiff perfected his second appeal, but the Appellate Division dismissed it as well, citing Bray v Cox (38 NY2d 350). The court held that "plaintiff is barred from raising the issue of the timeliness of the insurance carrier's disclaimer of coverage on this appeal. The issue could have been raised in the prior appeal from the order dated May 15, 1997, which was dismissed as abandoned." We affirm.


In Bray v Cox (38 NY2d 350), this Court held that, if an appeal has been dismissed for failure to prosecute, any subsequent appeal raising an issue presented by the earlier appeal is subject to dismissal. There, the trial court dismissed plaintiff's personal injury claim, arising out of a car accident, on the ground that the Ontario guest statute applied. The Appellate Division reversed, and this Court granted defendant leave to appeal. Defendant, however, failed to perfect his appeal, and we later dismissed it for want of prosecution. After a jury verdict for plaintiff, defendant appealed directly to this Court pursuant to CPLR 5601(d), arguing again that the Ontario guest statute applied.

This Court dismissed defendant's second appeal on theground that "a prior dismissal for want of prosecution acts as a bar to a subsequent appeal as to all questions that were presented on the earlier appeal" ( Bray v Cox, supra, 38 NY2d, at 353). As we noted, if no penalty were imposed for failing to prosecute an earlier appeal, litigants could use the appellate process as a means of "delaying enforcement of judgments and the inevitable payment of just debts and obligations" ( id.). Further, we concluded that, as a prudential matter, an appellant should not "have two opportunities to appeal to this [C]ourt on identical issues" ( id.; see also, Siegel, NY Prac § 542, at 898 [3d ed]).

People v Corley (67 NY2d 105) applied those same principles in a criminal case. Citing Bray, we reasoned that after an appeal has been dismissed for failure to prosecute, permitting a subsequent appeal on the same issue would "encourage laxity" as well as "foster disrespect and indifference toward our rules and orders" ( id., at 109).

We were unwilling to abide those consequences in Corley, and we remain unwilling to do so here. Plaintiff raised the same issue on his appeal from the original May 15, 1997 order that he raised on appeal from the subsequent August 22, 1997 order. However, he chose to ignore the first appeal, requiring the Appellate Division to take steps to dismiss the matter. As we stated in Corley, that sort of laxity and disrespect toward court procedures should not be condoned.

Plaintiff tries to distance himself from Bray and Corley by arguing that his first appeal, according to CPLR 5517(a)(1), remained viable even after Supreme Court granted reargument, and thus he had the right to file both appeals. The issue before us, however, is not whether plaintiff had the right to file both appeals –– no one disputes that he did ( see, Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR 5517, at 209; Siegel, NY Prac, supra, § 532, at 879; see also, CPLR 5701[a][2][viii] [effective July 20, 1999] [explicitly authorizing appeal from an order granting leave to reargue]). In Bray as well, appellant unquestionably had the right to file his second appeal pursuant to CPLR 5601(d) ( see, Bray v Cox, supra, 38 NY2d, at 353). Rather, the issue here, as in Bray, is whether, having decided to file both appeals, plaintiff had the right to pursue the second appeal after allowing the first to die on the vine. Clearly, he did not.

CPLR 5517 does not mandate a contrary result. That section, derived from Civil Practice Act § 562–a, was enacted in order to ensure that an appeal remains viable where the trial court grants reargument of the order appealed from, and then on reargument adheres to its original decision. The statute was designed to reverse a string of court cases holding to the contrary ( see, 1951 Report of Jud Council at 207–11; see also, 12 Weinstein, Korn & Miller, NY Civ Prac � 5517.01). CPLR 5517 was not intended, however, to permit litigants to engage in the dilatory practice of allowing an appeal to be dismissed for want of prosecution and then later pursuing a second appeal on the same issue.

Notably, plaintiff could have avoided his present predicament in several ways. He could have timely perfected his original appeal. He could have moved the Appellate Division for an extension of time to perfect that appeal ( see, 22 NYCRR 670.8[d]–[h]). If plaintiff knew that he could not perfect the first appeal in a timely manner, he could have withdrawn it, sparing the Appellate Division the burden of carrying, monitoring and ultimately dismissing it. After withdrawing the first appeal, plaintiff could have continued to pursue the second appeal, if he so desired ( see, e.g., People v Green, 56 NY2d 427, where defendant withdrew his interlocutory appeal [53 NY2d 704] and court later addressed the merits). Plaintiff, however, simply chose to abandon his first appeal, showing complete indifference toward the court system. We cannot say that, in these circumstances, dismissal of plaintiff's second appeal was erroneous as a matter of law.

Nor does the result we reach conflict with Aridas v Caserta (41 NY2d 1059), as plaintiff contends. In Aridas, the Appellate Division dismissed defendants' first appeal for failure to prosecute, and then decided defendants' second appeal –– though based on the same issue –– on the merits. Recognizing that the Appellate Division retained "continuing jurisdiction" toreconsider its prior determination, we concluded that the Appellate Division's discretionary decision to hear the second appeal was not error as a matter of law ( id., at 1061; see also, Faricelli v TSS Seedman's, Inc., ___ NY2d ___ [decided today]). Aridas recognizes the Appellate Division's discretion to entertain an appeal after dismissal of a prior appeal for failure to prosecute, but it does not require the Appellate Division to do so. Moreover, we have no doubt that the Appellate Division was well aware that it had the discretion to entertain plaintiff's appeal if it wished ( see, e.g., Brosnan v Behette, 243 AD2d 524, another Second Department case). Thus, there is no need to remit this case to the Appellate Division for an exercise of discretion.

Finally, plaintiff argues that in other cases where appeals have been filed from the original order as well as from the order on reargument adhering to the original decision, the Appellate Division has dismissed the appeal from the original order as academic or superseded, and then considered the second appeal on the merits. However, even if the Appellate Division has, on occasion, exercised its discretion to hear a subsequent appeal, it certainly was not required to do so in the case at hand. Moreover, there is no indication in the cases cited by plaintiff that the first appeal was not timely perfected ( see, e.g., Bents v City of New York, 683 NYS2d 48 [1st Dept]; Andrews v LaRuffa, 682 NYS2d 891 [2d Dept]; Ryan v McLean, 209 AD2d 913[3d Dept]; Public Service Truck Renting, Inc. v Ambassador Ins. Co., 136 AD2d 911 [4th Dept]). Where, as here, the first appeal has been dismissed for failure to perfect in a timely fashion, the Appellate Division has held that dismissal of the second appeal is appropriate ( see, Tepper v Furino, 239 AD2d 405, 405–06, appeal dismissed, 91 NY2d 866).

Plaintiff points to Dennis v Stout (24 AD2d 461), where the Appellate Division held that the appellant "properly abandoned" his appeal from the original order after the trial court issued an order, on reargument, adhering to its original decision, from which a new notice of appeal was filed ( id., at 461–62). Dennis, however, was decided in 1965 –– 11 years before our holding in Bray that the abandonment of a prior appeal justifies dismissal of a second appeal.

In short, the message is clear and consistent: the filing of an appeal is not inconsequential. An appeal left untended may be dismissed as abandoned, and appellant may be precluded from later appealing the same issue.

Accordingly, the order of the Appellate Division should be affirmed, with costs.

Order affirmed, with costs. Opinion by Chief Judge Kaye. Judges Bellacosa, Smith, Levine, Ciparick and Wesley concur. Judge Rosenblatt took no part.

Decided October 14, 1999

The case of Thomas J. Rubeo, v. National Grange Mutual Insurance provided as part of a free educational service by J. Douglas Barics, attorney at law, for reference only. Cases such as Rubeo v National Grange may be overruled by subsequent decisions, different judicial departments may have different controlling case law, and the level of the court deciding each case will determine whether it is controlling law or not. Thomas J. Rubeo, v. National Grange Mutual Insurance Co is presented here to help illustrate how the law works in general, but for specific legal matters, an attorney should be consulted.

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