Whether an appealing party can file a second appeal after an initial appeal on the same issue failed for lack of prosecution.

Yes. The Appellate Division has discretion to allow a prior decision act as a bar to future litigation on that issue.

Plaintiff slipped and fell on a blackened banana in one of defendant's stores. Plaintiff filed a personal injury suit and claimed that the blackened peel put defendant on notice of a dangerous condition. Defendant moved for summary judgment, arguing that there was no triable fact on the issue of notice. The supreme court denied summary judgment, and Defendant appealed but failed to perfect its appeal, resulting in a dismissal by the Appellate Division for want of prosecution. The jury returned the verdict, holding Defendant 95% liable for the damages. Defendant appealed again on the issue of notice, contending that the plaintiff did not present substantive proof of constructive notice to maintain the verdict.

Plaintiff filed a motion contending that Defendant should not be able to re-litigate the issue of notice as it had abandoned its earlier appeal. However, the Appellate Division denied this motion and reversed the decision of the Supreme Court. Plaintiff appealed to the Court of Appeals contending that the Appellate Division could not allow a re-litigation on the same issue. The Court noted its decision in Bray v Cox, 38 N.Y.2d 350, which held that a prior dismissal for want of prosecution acts as a bar to all questions that were presented on the earlier appeal.

The Court, however, affirmed the decision of the Appellate Division. While Bray grants the Appellate Division the discretion to deny Defendant's second appeal, it also grants the authority to entertain a second appeal on the same issue at the appellate court's discretion.