Faricelli v. TSS Seedman's, Inc.

• Court: New York Court of Appeals Court of Appeals
• Writing for the Court: Chief KAYE and s BELLACOSA, SMITH, LEVINE, CIPARICK and WESLEY concur; ROSENBLATT taking no part.
• Citation: Faricelli v. TSS Seedman's, Inc., 94 N.Y.2d 772, 720 N.E.2d 864, 698 N.Y.S.2d 588 (N.Y. 1999)
• Decision Date: 14 October 1999
• Parties: CATERINA FARICELLI et al., Appellants, v. TSS SEEDMAN'S, INC., Respondent, et al., Defendant. (And a Third-Party Action.)

94 N.Y.2d 772

720 N.E.2d 864

698 N.Y.S.2d 588

CATERINA FARICELLI et al., Appellants, v. TSS SEEDMAN'S, INC., Respondent, et al., Defendant. (And a Third-Party Action.)

Court of Appeals of the State of New York.

Decided October 14, 1999.

Barbara Conroy Singer, Brooklyn, and Stephen A. Harrison for appellants.

Gordon & Silber, P. C., New York City (Jon D. Lichtenstein of counsel), for respondent.

Tromello, Jennings & Siegel, New York City (Peter E. Vairo of counsel), for defendant.

Before: Chief Judge KAYE and Judges BELLACOSA, SMITH, LEVINE, CIPARICK and WESLEY concur; Judge ROSENBLATT taking no part.

OPINION OF THE COURT MEMORANDUM.

The order of the Appellate Division should be affirmed, with costs.

Plaintiff-wife slipped and fell on a blackened banana peel on the floor in the housewares section of a department store operated by defendant TSS Seedman's, Inc., and brought suit for damages. Plaintiffs contended that, because the peel was blackened, defendant must have had notice of a dangerous condition on the premises. Defendant moved for summary judgment, arguing that there was no triable issue of fact on the issue of notice. Supreme Court denied summary judgment, and defendant appealed but failed to perfect its appeal, which the Appellate Division dismissed for want of prosecution.

After trial, the jury found defendant 95% liable and plaintiffs 5% liable. Defendant then filed the instant appeal, arguing that plaintiffs did not present sufficient proof of constructive notice to support the verdict. Plaintiffs moved to dismiss defendant's appeal on the ground that, having abandoned its earlier appeal, defendant should not be permitted to re-litigate the issue of constructive notice. The Appellate Division denied plaintiffs' motion and reversed, concluding that plaintiffs did not establish constructive notice. We now affirm.

The Appellate Division did not err when it declined to dismiss defendant's appeal. As we stated in Bray v Cox (38 NY2d 350, 353), "a prior dismissal for want of prosecution acts as a bar to a subsequent appeal as to all questions that were presented on the earlier appeal" (see also, Rubeo v National Grange Mut. Ins. Co., 93 NY2d 750 [decided today]). However, an appellate court has the authority to entertain a second appeal in the exercise of its discretion, even where a prior appeal on the same issue has been dismissed for failure to prosecute (see, Aridas v Caserta, 41 NY2d 1059, 1061). Thus, in the case at hand, the Appellate Division had the authority to hear defendant's second appeal in the exercise of its discretion, even if it could have dismissed the appeal under Bray.

On...