THOMAS J. RUBEO, APPELLANT, v. NATIONAL GRANGE MUTUAL INSURANCE CO.,
RESPONDENT, ET AL., DEFENDANT.
93 N.Y.2d 750 (1999).
October 14, 1999
2 No. 148
(99 NY Int. 0128)
Decided October 14, 1999
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This opinion is uncorrected and subject to revision before publication
in the New York Reports.
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Philip B. Murphy, for appellant.
John P. Meenagh, Jr., for respondent.
KAYE, CHIEF JUDGE:
The core question before us is a practice issue that has recurred in
varying forms: what is the consequence of abandoning an appeal and
then, later in the litigation, filing a second appeal presenting the
same issue? Consistent with ourprecedents, we conclude that the
Appellate Division, in the circumstances presented, correctly
dismissed the second appeal.
On March 31, 1990, plaintiff Thomas Rubeo contracted with Bedford
Construction Management Corporation to build a house in Katonah, New
York. Defendant National Grange Mutual Insurance Company ("NGM")
insured Bedford. After the septic system installed in the house
malfunctioned, plaintiff sued Bedford, alleging defective
construction, and obtained a default judgment for $125,322.50. Unable
to recover from Bedford, plaintiff in 1994 sued the insurer to collect
the unsatisfied judgment. NGM moved for summary judgment, and on May
15, 1997, Supreme Court granted the motion, holding that the terms of
the insurance policy specifically excluded coverage for the damage at
issue. Plaintiff filed a notice of appeal and simultaneously sought
reargument in Supreme Court, contending that the court had overlooked
his argument that the insurer had failed to issue a timely disclaimer.
On August 22, 1997, Supreme Court granted reargument, and upon
reargument, adhered to its decision, holding that NGM had timely
disclaimed liability. Plaintiff filed a second notice of appeal.
Plaintiff, however, failed to perfect his first appeal within six
SNIPPETS:
The core question before us is a practice issue that has recurred in varying forms: what is
Consistent with ourprecedents, we conclude that the Appellate Division, in the circumstances
On March 31, 1990, plaintiff Thomas Rubeo contracted with Bedford Construction Management
Defendant National Grange Mutual Insurance Company insured Bedford.
After the septic system installed in the house malfunctioned, plaintiff sued Bedford,
NGM moved for summary judgment, and on May 15, 1997, Supreme Court granted the motion,
Plaintiff filed a notice of appeal and simultaneously sought reargument in Supreme Court,
Consequently, pursuant to 22 NYCRR 670.8, the Appellate Division included the appeal in a
In Bray v Cox (38 NY2d 350), this Court held that, if an appeal has been dismissed for
After a jury verdict for plaintiff, defendant appealed directly to this Court pursuant to
We were unwilling to abide those consequences in Corley, and we remain unwilling to do so
However, he chose to ignore the first appeal, requiring the Appellate Division to take steps
Plaintiff tries to distance himself from Bray and Corley by arguing that his first appeal,
Aridas recognizes the Appellate Division's discretion to entertain an appeal after dismissal
Moreover, we have no doubt that the Appellate Division was well aware that it had the
Opinion by Chief Judge Kaye.
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