Practice point: The Appellate Division generally will not consider, on a subsequent appeal, an issue from an earlier appeal which was dismissed for lack of prosecution, although the Court has the inherent jurisdiction to do so.
Practitioners should note that the better practice is to withdraw the prior appeal, and not abandon it.
Case: Maksuta v. Galiatsatos, NY Slip Op 04033 (2d Dept. 2009)
The opinion is here.
Tomorrow’s issue: Notice of Claim.
You will find another instructive case here.
