Plaintiff won a default judgment from Bedford Construction Management Corporation on the issue of defective construction. Plaintiff tried unsuccessfully to recover from Bedford and ultimately elected to sue Defendant for recovery. The Supreme Court granted Defendant's motion for summary judgment, finding that under the terms of the insurance policy, there was no coverage for the precise damage alleged.

Plaintiff simultaneously filed a first notice of appeal and a motion for reargument, contending that the insurer had failed to issue a timely disclaimer. The Supreme Court heard reargument but adhered to its original decision. Plaintiff then filed a second notice of appeal without perfecting the first appeal within six months, as required by 22 NYCRR 670.8(e). As a result, the Appellate Division dismissed the first appeal for failure to prosecute on February 18, 1998. On February 27, 1998, Plaintiff perfected the second appeal, again raising the issue of the timeliness of Defendant's disclaimer. The Appellate Division found that Plaintiff could have raised this issue of timeliness in the first appeal and dismissed the second appeal. The Court of Appeals affirmed.

Whether a court must entertain a second appeal after a previous appeal on the same issue was dismissed for failure to prosecute within statutory time limits.

No. It is within the discretion of the court to hear a subsequent appeal which presents the same issues.

State of the Law Before Rubeo

The Appellate Division has authority to hear a second appeal that is based on the same issue as the first appeal, even if the court dismissed the first appeal for failure to prosecute. See Aridas v. Caserta, 41 N.Y.2d 1059 (1977). See also Faricelli v. TSS Seedman's, Inc., 1999 N.Y. Int. 0130 (N.Y.1999). Nevertheless, a court, within its discretion, may also refuse to hear a second appeal. In two prior cases, the Court of Appeals held the dismissal of an unperfected appeal to be "on the merits of all claims which could have been litigated had the appeal been timely argued or submitted." Bray v. Cox, 38 N.Y.2d 350, 355 (1976) (refusing to hear a second appeal on the same issues as defendant's first appeal). See also People v. Corley, 67 N.Y.2d 105 (1986) (applying the Bray holding to a criminal case). Additionally, in Tepper v. Furino, the defendants' second appeal was dismissed after defendants had failed to perfect their first appeal in a timely manner. Tepper v. Furino, 239 A.D.2d 405 (N.Y. App. Div. 1997). But if and when a first appeal is withdrawn, rather than dismissed, a petitioner may bring a second appeal on the same issue. See People v. Green, 56 N.Y.2d 427 (1982).

Effect of Rubeo on Current Law

The Court clarifies what the Appellate Division may do when faced with a second appeal on the same issue presented in an abandoned appeal. The Court held that while a party has a right to appeal, the Appellate Division has discretion whether to entertain the appeal. According to the Court, there are three ways a party in this position may preserve the right to appeal: the party may either 1) perfect the first appeal, even if the appellate court ultimately refuses to hear it until the trial court reaches a decision after reargument; 2) apply to the appellate court for an extension of time; or 3) withdraw the appeal of the original trial court order and appeal the ruling of the trial court after reargument.

Following its holding in Bray v. Cox, the Court justified its position on principles of fairness and judicial economy; a party should not have two chances to appeal the same issue, nor should the party be allowed to waste judicial resources with frivolous appeals. The Court rejects Plaintiffçs reliance on Dennis v. Stout, as inconsistent with its holding in Bray. See Dennis v. Stout, 24 N.Y.S.2d 461 (N.Y. App. Div. 1965).

Unanswered Questions

What factors should the Appellate Division use in deciding whether to hear a second appeal where the first appeal has been dismissed or unperfected?

Does a party have a cause of action for attorney malpractice when the attorney fails to perfect an initial appeal, barring any subsequent appeal of the issue?

Survey of the Law in Other Jurisdictions

Authorities are split on this issue. Many states treat the dismissal of an appeal for want of prosecution as an affirmance of the judgment and bar subsequent appeal of the issues presented in the first appeal. See H. & S. Ltd. v. Andreola, 363 N.W.2d 592 (Iowa 1984); Carlberg v. Fields, 146 N.W. 560 (S.D. 1914); First American Nat'l Bank of Iuka v. Alcorn, Inc., 361 So. 2d 481 (Miss. 1978).

In some jurisdictions, however, subsequent appeals are permitted. The rationale in most of these cases is precisely the opposite of that in the above cases: the dismissal for want of prosecution is not a decision on the merits. See Sanders v. Moore, 12 S.W. 783 (Ark. 1889); Helm v. Boone, 29 Ky. 351 (1831).

The rule in Ohio is that when the subsequent appeal is predicated on "newly discovered evidence or newly discovered grounds for new trial" the appeal should not necessarily be barred. See Anderson v. Richards, 179 N.E.2d 918 (Ohio 1962). For a more thorough examination of this issue see Annotation, Dismissal of Appeal or Writ of Error for Want of Prosecution as Bar to Subsequent Appeal, 96 A.L.R.2d 312 (1997).