| Kalafatis v Royal Waste Servs., Inc. |
| 2012 NY Slip Op 03603 [95 AD3d 954] |
| May 8, 2012 |
| Appellate Division, Second Department |
| Nilda Kalafatis, Appellant, v Royal Waste Services, Inc., etal., Respondents, et al., Defendants. |
—[*1] Havkins Rosenfeld Ritzert & Varriale, LLP, Mineola, N.Y. (Jonathan A. Judd of counsel),for respondents.
In an action to recover damages for personal injuries, the plaintiff appeals from so much ofan order of the Supreme Court, Kings County (Bunyan, J.), dated April 27, 2011, as, uponreargument, adhered to so much of an order dated August 4, 2010, as granted that branch of thecross motion of the defendants Royal Waste Services, Inc., and Francisco A. Meza which was forsummary judgment dismissing the complaint insofar as asserted against them.
Ordered that the order dated April 27, 2011, is affirmed insofar as appealed from, with costs.
On November 3, 2006, at about 1:30 a.m., a vehicle owned by the defendant Royal WasteServices, Inc. (hereinafter Royal Waste Services), and operated by the defendant Francisco A.Meza, collided with a stolen vehicle in which Joseph K. Kalafatis was a passenger at anintersection which was governed by a traffic light. Meza was facing a steady green light, andshortly after his vehicle entered the intersection, it collided with the stolen vehicle which,according to police officers who witnessed the incident, sped through several red traffic lights,including the one at the subject intersection. As a result, Joseph K. Kalafatis commenced thisaction against, among others, Royal Waste Services and Meza. Subsequently, Nilda Kalafatis, asguardian of the person and limited guardianship of the property of Joseph K. Kalafatis, wassubstituted as the plaintiff.
By order dated August 4, 2010, the Supreme Court, inter alia, granted that branch of the crossmotion of Royal Waste Services and Meza which was for summary judgment dismissing thecomplaint insofar as asserted against them. The plaintiff appealed from that order. The plaintiffalso moved for leave to reargue her opposition to that branch of the motion of Royal WasteServices and Meza which was for summary judgment dismissing the complaint insofar asasserted against them. In an order dated April 27, 2011, the Supreme Court granted the plaintiff'smotion for leave to reargue and, upon reargument, adhered to its original determination. Theplaintiff then abandoned the appeal from the prior order, resulting in a dismissal of that appealfor failure to prosecute.
As a general rule, this Court does not consider an issue on a subsequent appeal which [*2]was raised or could have been raised in an earlier appeal which wasdismissed for lack of prosecution, although this Court has the inherent jurisdiction to do so(see Rubeo v National Grange Mut. Ins. Co., 93 NY2d 750, 754 [1999]; Bray vCox, 38 NY2d 350, 353 [1976]). While the better practice would have been for the plaintiffto withdraw the prior appeal rather than abandon it, nonetheless, we exercise our discretion toreview the issues raised on the appeal from so much of the order dated April 27, 2011, as wasmade upon reargument (see Franco vBreceus, 70 AD3d 767 [2010]; Neuburger v Sidoruk, 60 AD3d 650 [2009]; DiGiaro v Agrawal, 41 AD3d 764[2007]; Cesar v Highland Care Ctr.,Inc., 37 AD3d 393 [2007]).
As to the merits, the evidence submitted by Royal Waste Services and Meza demonstratedthat the negligence of the operator of the stolen vehicle in proceeding through the intersectionagainst a red light, without stopping, while speeding, was the sole proximate cause of theaccident (see Deleg v Vinci, 82AD3d 1146 [2011]; Ramos vTriboro Coach Corp., 31 AD3d 625 [2006]; Casanova v New York City Tr.Auth., 279 AD2d 495 [2001]). In opposition, the plaintiff failed to raise a triable issue of factas to Meza's contributory negligence (see Yelder v Walters, 64 AD3d 762 [2009]). Accordingly, theSupreme Court properly, upon reargument, adhered to its prior determination granting thatbranch of the cross motion of Royal Services Waste and Meza which was for summary judgmentdismissing the complaint insofar as asserted against them. Angiolillo, J.P., Lott, Roman andMiller, JJ., concur.