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,
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)

In a proceeding pursuant to CPLR article 78 to review a determination of the Town of Clarkstown Department of Environmental Control, dated January 17, 2002, the appeal is from a judgment of the Supreme Court, Rockland County (Bergerman, J.), dated September 18, 2003, which granted the petition to the extent of annulling the determination that no further applications from the petitioners would be entertained and directed that the petitioners’ application be considered.

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

• 2004 WL 3392359 (Appellate Brief) Brief of Petitioners-Respondents (Apr. 15, 2004)
• 2004 WL 3392358 (Appellate Brief) Brief of Respondents-Appellants (Mar. 15, 2004)