Rubeo v. National Grange Mutual Insurance Company, 93 N.Y.2d 750 (1999)

When an appeal is dismissed for failure to prosecute, a subsequent appeal raising the same issues presented in the first appeal is subject to dismissal.

Summary

Plaintiff sued the defendant insurance company after failing to recover from a construction company it insured. After the Supreme Court granted summary judgment to the insurer, the plaintiff filed an appeal but failed to perfect it within the allotted time, leading to its dismissal. The plaintiff then perfected a second appeal from the denial of reargument. The Appellate Division dismissed the second appeal, citing the rule that abandoning an initial appeal bars a subsequent appeal on the same issues. The Court of Appeals affirmed, holding that allowing a second appeal would reward laxity and disrespect towards court procedures. The court emphasized that the plaintiff had several options to avoid this outcome, including timely perfecting the first appeal or withdrawing it.

Facts

Plaintiff contracted with Bedford Construction, insured by National Grange Mutual Insurance Company (NGM), to build a house. The septic system malfunctioned, and plaintiff sued Bedford, obtaining a default judgment. Unable to recover, plaintiff then sued NGM. The Supreme Court initially granted summary judgment to NGM, finding the policy excluded coverage. Plaintiff filed a notice of appeal. The Supreme Court granted reargument but adhered to its original decision, and the plaintiff filed a second notice of appeal.

Procedural History

The Supreme Court granted summary judgment to NGM on May 15, 1997. Plaintiff appealed. On August 22, 1997, the Supreme Court granted reargument but adhered to its original decision, leading to a second appeal. The Appellate Division dismissed the first appeal as abandoned on February 18, 1998, due to the plaintiff’s failure to prosecute it. On February 27, 1998, the Appellate Division dismissed the second appeal based on the abandonment of the first. The Court of Appeals granted leave to appeal and affirmed the dismissal.

Issue(s)

Whether a party who abandons a first appeal by failing to prosecute it can subsequently appeal the same issue following the denial of reargument of the original order.

Holding

No, because “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, 38 N.Y.2d 350, 353 (1975)).

Court’s Reasoning

The Court of Appeals relied on its prior holdings in Bray v Cox and People v Corley, which established that abandoning an appeal precludes a subsequent appeal on the same issues. The Court reasoned that allowing a second appeal would undermine the appellate process by enabling litigants to delay judgments and disregard court rules. Quoting People v. Corley, the Court stated that permitting a subsequent appeal would “encourage laxity” as well as “foster disrespect and indifference toward our rules and orders” (67 NY2d 105, 109 (1986)). The Court rejected the plaintiff’s argument that CPLR 5517(a)(1) permitted filing both appeals, clarifying that while the statute allows for such filings, it doesn’t grant the right to pursue the second appeal after abandoning the first. The court also noted the availability of alternative actions the plaintiff could have taken such as seeking an extension of time to perfect the first appeal or withdrawing the initial appeal altogether. The Court distinguished Aridas v. Caserta, 41 NY2d 1059 (1977), noting that while the Appellate Division has discretion to hear a second appeal after dismissal of the first for failure to prosecute, it is not required to do so. The court emphasized the importance of adhering to appellate rules and procedures, reinforcing the principle that the abandonment of an appeal has significant consequences.