Joy Builders, Inc. v. Town of Clarkstown Planning Board

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 NY2d 750 [1999]; Bray v Cox, 38 NY2d 350 [1976]; Paniccia v Long Is. R.R. Co., 297 AD2d 366 [2002]). 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 (App Div Docket No. 2001-05258). We decline to exercise our discretion to address the appellants’ 417 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.