Appellate Division: Second Judicial Department

M56545

S/sl

A. GAIL PRUDENTI, P.J.

ROBERT W. SCHMIDT

FRED T. SANTUCCI

ROBERT A. LIFSON, JJ.

2005-05558 In the Matter of Lawrence Talt, et al., appellants, v James T. Murphy, etc., et al., respondents. (Index No. 08498/04)

DECISION & ORDER ON MOTION

Motion by the appellants for leave to reargue an appeal from an order of the Supreme Court, Nassau County, dated April 25, 2005, which was determined by decision and order of this court dated December 5, 2006 (see Matter of Talt v Murphy, 35 AD3d 486).

Upon the papers filed in support of the motion and no papers having been filed in opposition thereto, it is

ORDERED that the motion is denied.

In general, unless there has been an intervening change in the law, a motion to reargue an appeal should be granted only if, in deciding the appeal, the court "overlooked or misapprehended" a material fact or a controlling rule of law (22 NYCRR 670.6[a]; see CPLR 2221[d][2]). Here, the appellants have not demonstrated that, in dismissing their appeal, this court overlooked any material fact or misapprehended any rule of law (see Rubeo v National Grange Mut. Ins. Co., 93 NY2d 750; Bray v Cox, 38 NY2d 350; see also Sargent v Klein & Eversoll, Inc., 31 AD3d 736).

PRUDENTI, P.J., SANTUCCI and LIFSON, JJ., concur.

SCHMIDT, J., dissents and votes to grant the motion for reargument and, upon reargument, entertain the petitioners' appeal from the order of the Supreme Court, Nassau County, dated April 25, 2006, with the following memorandum:

I respectfully disagree with the decision of my colleagues in the majority to deny reargument and, in effect, dismiss the appeal. I find that the interest of justice calls for this court to exercise its "continuing jurisdiction generally to reconsider any prior intermediate determination it has made" (Aridas v Caserta, 41 NY2d 1059, 1061), grant reargument, and then, in the exercise of discretion, entertain rather then dismiss the instant appeal.

The petitioners initially appealed from a judgment dated January 5, 2005, which denied their petition seeking to annul a zoning determination, but failed to perfect the appeal when the Supreme Court rendered the order dated April 25, 2005, made upon reargument, which adhered to the original determination. The petitioners then filed the instant appeal from the order before the first appeal was dismissed for failure to perfect. According to the petitioners, they declined to pursue the first appeal because the judgment appealed from had been superseded by the subsequent order rendered on reargument.

As a general rule, this court will not consider an issue on a subsequent appeal that was raised, or could have been raised, in an earlier appeal that was dismissed for lack of prosecution (see Rubeo v National Grange Mut. Ins. Co., 93 NY2d 750; Bray v Cox, 38 NY2d 350, 353; Cesar v Highland Care Ctr., Inc., 37 AD3d 393). However, this court is not obligated to dismiss such an appeal because an appellate court has the authority to entertain a second appeal in the exercise of its discretion, even where a prior appeal on the same issue has been dismissed for failure to perfect (see Faricelli v TSS Seedman's, 94 NY2d 772, 774; Podbielski v KMO-361 Realty Assoc., 294 AD2d 552, 553). Mindful that this court's discretion should be exercised sparingly and only where the interest of justice requires it (see Gammal v La Casita Milta, 278 AD2d 364; Brosnan v Behette, 243 AD2d 524, 527), I find this to be one of those rare cases. Under the circumstances presented, where the motion for reargument is unopposed, the respondents never raised the Bray v Cox (supra) issue, and there is lack of prejudice to either party, and the fact that the subsequent order had been appealed from prior to dismissal of the original appeal, I find that the interest of justice requires that this court exercise its discretion and reach the merits of the petitioners' arguments on appeal. There are numerous cases in which appeals have been filed from the original order as well as from an order on reargument adhering to the original determination, and this court has dismissed the appeal from the first order as academic and then entertained the second appeal on the merits. Moreover, this court has frequently reviewed the issues raised on a subsequent appeal in the exercise of its discretion (see Cesar v Highland Care Ctr., Inc., supra; Roland v Ajamian, 17 AD3d 440; Rose v Horton Med. Ctr., 5 AD3d 459, 460). Accordingly, I vote to grant reargument and, upon reargument, would exercise such discretion as to permit appellate review of the propriety of the dismissal of the petition.

ENTER:

James Edward Pelzer

Clerk of the Court