As a general rule, an appellate court will not consider an issue on a subsequent appeal that was raised or could have been raised in an earlier appeal, where such earlier appeal was dismissed for lack of prosecution, since the prior dismissal constituted a determination on the merits (see Rubeo v. National Grange Mut. Ins. Co., 93 N.Y.2d 750 [1999]). Although the Appellate Division possesses discretion to permit review in the interest of justice, such review is exercised sparingly (see Gurman v. Fotiades, 73 A.D.3d 1126, 1126-27 [2d Dept., 2010]).

In Mosby v. Parilla, decided June 29, 2016, the court recognized a different rule in cases where a prior appeal has been dismissed as untimely. In such cases, the court in Mosby held, the prior dismissal "does not constitute an adjudication on the merits with respect to all issues which could have been reviewed on that appeal" (140 A.D.3d 1129, 1131 [2d Dept.] [citations omitted]). Thus, the aggrieved party may appeal from any subsequent judgment or order in the case that raises the same issues as the previously dismissed appeal.

First, a few basics are in order. "Taking" an appeal should not be confused with "perfecting" an appeal. An appeal is taken by "serving on the adverse party a notice of appeal and filing it in the office where the judgment or order of the court of original instance is entered" (CPLR 5515[1]). An appeal is perfected by serving and filing the record on appeal or appendix and the appellant's main brief in the court to which the appeal has been taken.

An appeal must be taken "within thirty days after service by a party upon the appellant of a copy of the judgment or order appealed from and written notice of its entry" (CPLR 5513[a]). "The time period for filing a notice of appeal is nonwaivable and jurisdictional" (see Jones Sledzik Garneau & Nardone v. Schloss, 37 A.D.3d 417 [2d Dept., 2007]).

The Court of Appeals and Appellate Division have rules that prescribe time limits for perfecting an appeal. For example, in the Second Department a civil appeal will be deemed abandoned unless perfected within six months after the date of the notice of appeal (see 22 NYCRR §670.8[e][1]). The First Department has a nine-month limit (see id. at §600.11[a][3]). The courts also have rules that mandate the dismissal of an appeal that has not been perfected within the prescribed time limit (see, e.g., id. at §670.8[h]).

Dismissal for Abandonment

In the leading case of Bray v. Cox, the Court of Appeals held that "a prior dismissal [of an appeal] for want of prosecution acts as a bar to a subsequent appeal as to all questions that were presented on the earlier appeal" (see 38 N.Y.2d 350, 353). This rule is designed to prevent litigants from invoking the appellate process to delay "enforcement of judgments and the inevitable payment of just debts and obligations," and further to prevent a dilatory appellant from having two bites at the apple (id.).

Rubeo examined the interplay between Bray and CPLR 5517(a)(1), which provides that an appeal remains viable where the trial court grants reargument of the order appealed from, and then on reargument adheres to its original decision. The plaintiff in Rubeo filed a notice of appeal from a May 15, 1997, order of the Supreme Court granting summary judgment against him and simultaneously moved for reargument of that order in the same court. The plaintiff did not perfect his appeal from the summary judgment order within the Second Department's six-month deadline.

On Aug. 22, 1997, the Supreme Court granted reargument, but adhered to its original determination. The plaintiff filed a second notice of appeal from the order on reargument. On Feb. 18, 1998, the Appellate Division dismissed the first appeal from the original summary judgment order for lack of prosecution. On Feb. 27, 1998, the plaintiff perfected the second appeal from the subsequent order on reargument, but the Appellate Division dismissed that appeal as well, citing Bray. The Court of Appeals granted leave.

The plaintiff tried to distance himself from Bray by arguing that his first appeal, under CPLR 5517(a)(1), remained viable even after the trial court granted reargument, and thus he had the right to file both appeals. The Court of Appeals acknowledged that the plaintiff had the "right" to file both appeals, but framed the issue as "whether, having decided to file both appeals, plaintiff had the right to pursue the second appeal after allowing the first to die on the vine" and then held "[c]learly, he did not" (see 93 N.Y.2d at 755) (citations omitted).

The court in Rubeo provided guidance for appellate practitioners by observing that the plaintiff could have avoided dismissal of his second appeal in several ways: (1) "[h]e could have timely perfected his original appeal"; (2) "[h]e could have moved the Appellate Division for an extension of time to perfect that appeal"; or (3) "[i]f plaintiff knew that he could not perfect the first appeal in a timely manner, he could have withdrawn it, sparing the Appellate Division the burden of carrying, monitoring and ultimately dismissing it. After withdrawing the first appeal, plaintiff could have continued to pursue the second appeal, if he so desired" (see id. at 755-56) (citations omitted). Since the plaintiff took none of these steps, but simply chose to abandon his first appeal, the court held that the Appellate Division's dismissal of the second appeal was appropriate.

Dismissal for Untimeliness

Bray and Rubeo held that the dismissal of an appeal for failure to prosecute constitutes a determination on the merits that bars a subsequent appeal on the same issues, subject to the Appellate Division's rarely exercised discretion to permit review in the interest of justice. By contrast, Mosby held that the dismissal of an appeal as untimely is not a determination on the merits, such that the appellant may pursue a subsequent appeal raising the same issues.

Mosby arose from a dental malpractice action. Following a trial, the jury found in favor of the plaintiff on the issue of liability and awarded damages. The defendant dentist moved pursuant to CPLR 4404(a) to set aside the jury verdict and for judgment as a matter of law. While the defendant's post-trial motion was pending, the plaintiff caused a money judgment to be entered on May 10, 2013.

The defendant appealed from this judgment, but the Second Department dismissed this appeal as untimely. Subsequently, by an order entered March 14, 2014, the trial court granted the defendant's motion to set aside the verdict and for judgment as a matter of law. The plaintiff appealed from this order.

On appeal, the plaintiff contended that, in light of the dismissal of the defendant's prior appeal from the judgment entered May 10, 2013, the doctrine of law of the case precluded the trial court from deciding the defendant's pending motion to set aside the jury verdict against him and for judgment as a matter of law. The Second Department rejected this contention, however, stating that "[t]he doctrine [of law of the case] 'applies only to legal determinations that were necessarily resolved on the merits in the prior decision,' and to the same questions presented in the same case" (see Mosby, 140 A.D.3d at 1130–31 [citations omitted]).

The court in Mosby further held that the dismissal of the appeal from the earlier judgment as untimely did not adjudicate the merits of issues that could have been raised on that appeal: "Here, unlike the dismissal of an appeal for failure to prosecute, the dismissal of an appeal as untimely does not constitute an adjudication on the merits with respect to all issues which could have been reviewed on that appeal" (id. at 1131 [citations omitted]). The court therefore reviewed the subsequent post-trial order on the merits and affirmed that order.

The rule in Mosby represents an important reprieve for any would be appellant whose prior appeal has been dismissed as untimely, provided a subsequent judgment or order raising the same issues is entered from which a separate timely appeal may be taken. As we have observed in prior columns, it is better to let someone else contribute to the body of case law governing the timeliness of appeals; receiving a motion to dismiss your appeal for untimeliness will probably result in many sleepless nights. The frantic search for reasons to oppose this kind of dismissal motion—or to craft a work-around as in Mosby—can be easily avoided by serving and filing a notice of appeal early upon receipt of a colorable notice of entry of an appealable paper, without waiting until the 30th day just because the statute grants that much time.

Thomas R. Newman is of counsel to Duane Morris and author of 'New York Appellate Practice' (Matthew Bender). Steven J. Ahmuty, Jr. is a partner at Shaub, Ahmuty, Citrin & Spratt.

Reprinted with permission from New York Law Journal, © ALM Media Properties LLC. All rights reserved.