MAKSUTA v. Sorbara Construction Corp., respondent. (2009)

In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Bunyan, J.), dated February 6, 2008, as, in effect, upon renewal and reargument, adhered to the determination in a prior order dated March 7, 2007, granting that branch of the motion of the defendant Sorbara Construction Corp. which was for summary judgment dismissing the complaint insofar as asserted against it, and the defendants C. Galiatsatos, a/k/a Chrisostomos Galiatsatos, and Pavlos Galiatsatos separately appeal, as limited by their brief, from so much of the same order as, in effect, upon renewal and reargument, adhered to the determination in the order dated March 7, 2007, granting the motion of the defendant Sorbara Construction Corp. for summary judgment dismissing all cross claims insofar as asserted against it.

ORDERED that the order dated February 6, 2008, is affirmed insofar as appealed from, with one bill of costs payable to the respondent.

 As a general rule, this Court does not consider an issue on a subsequent appeal which was raised or could have been raised in an earlier appeal which was dismissed for lack of prosecution, although the Court has the 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).   The plaintiffs appealed from the order dated March 7, 2007, which, inter alia, granted that branch of the motion of the defendant Sorbara Construction Corp. (hereinafter Sorbara) which was for summary judgment dismissing the complaint insofar as asserted against it, but abandoned that appeal after the Supreme Court, in an order dated February 6, 2008, made, in effect, upon renewal and reargument, adhered to the original determination.   As a consequence of the plaintiffs' failure timely to perfect their appeal from the order dated March 7, 2007, that appeal was dismissed for failure to prosecute.   The better practice would have been for the plaintiffs to withdraw their prior appeal, rather than abandon it.   Nonetheless, under the circumstances, we exercise our discretion to review the issues raised on the plaintiffs' appeal from the order made, in effect, upon renewal and reargument (see generally Cesar v. Highland Care Ctr., Inc., 37 A.D.3d 393, 829 N.Y.S.2d 236).

 The Supreme Court, in effect, upon renewal and reargument, properly adhered to its original determination.   Sorbara established, prima facie, that its alleged negligence was not a proximate cause of the accident (see generally Derdiarian v. Felix Contr. Corp., 51 N.Y.2d 308, 434 N.Y.S.2d 166, 414 N.E.2d 666;  Mannion v. Lizza Indus., 127 A.D.2d 567, 511 N.Y.S.2d 366).   In opposition, the plaintiffs and the defendants C. Galiatsatos, a/k/a Chrisostomos Galiatsatos, and Pavlos Galiatsatos, failed to raise a triable issue of fact.