Joy Builders v Clarkstown
16 A.D.3d 416, 790 N.Y.S.2d 410, 2005 N.Y. Slip Op. 01716 (N.Y.A.D. 2 Dept. 2005)
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Briefs and Other Related Documents
Supreme Court, Appellate Division, Second Department, New York.
In the Matter of JOY BUILDERS, INC., et al., respondents,
v.
TOWN OF CLARKSTOWN PLANNING BOARD, et al., appellants.
March 7, 2005.
In the Matter of JOY BUILDERS, INC., et al., respondents,
v.
TOWN OF CLARKSTOWN PLANNING BOARD, et al., appellants.
March 7, 2005.
John A. Costa, Town Attorney, New City, N.Y. (Daniel N. Kraushaar and Harold Y. MacCartney of counsel), for appellants.
Benjamin Ostrer & Associates, P.C., Chester, N.Y., for respondents.
*416 (Cite as: 16 A.D.3d 416, *416, 790 N.Y.S.2d 410, 2005 N.Y. Slip Op. 01716)
ORDERED that the appeal is dismissed, without costs or disbursements.
As a general rule, we do not consider an issue on a subsequent appeal that was raised, or could have been raised, on an earlier appeal which was dismissed for lack of prosecution, although this court has inherent jurisdiction to do so ( see Rubeo v. National Grange Mut. Ins. Co., 93 N.Y.2d 750, 697 N.Y.S.2d 866, 720 N.E.2d 86; Bray v. Cox, 38 N.Y.2d 350, 379 N.Y.S.2d 803, 342 N.E.2d 575; **411 (Cite as: 16 A.D.3d 416, *416, 790 N.Y.S.2d 410, **411, 2005 N.Y. Slip Op. 01716)
Paniccia v. Long Is. R.R. Co., 297 A.D.2d 366, 746 N.Y.S.2d 607). Here, the appellants appealed, by permission, from an order dated July 23, 2003, denying their motion to dismiss the petition on res judicata grounds based on a prior determination by Justice Weiner at the Supreme Court, Rockland County, in another case. The appeal was later dismissed by this court for failure to prosecute (Appellate Division Docket No. 2001-05258). We decline to exercise our discretion to address the appellants' *417 (Cite as: 16 A.D.3d 416, *417, 790 N.Y.S.2d 410, **411, 2005 N.Y. Slip Op. 01716)
argument as to the effect of Justice Weiner's prior order on the present petition, an issue no different than the res judicata issue which could have been raised on the prior appeal.
PRUDENTI, P.J., RITTER, FISHER and LIFSON, JJ., concur.
Copr. (C) West 2006 No Claim to Orig. U.S. Govt. Works N.Y.A.D. 2 Dept. 2005.
Joy Builders, Inc. v. Town of Clarkstown Planning Bd.
16 A.D.3d 416, 790 N.Y.S.2d 410, 2005 N.Y. Slip Op. 01716
Briefs and Other Related Documents (Back to top)
• 2004 WL 3392359 (Appellate Brief) Brief of Petitioners-Respondents (Apr. 15, 2004)
• 2004 WL 3392358 (Appellate Brief) Brief of Respondents-Appellants (Mar. 15, 2004)
