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NEW YORK TELEPHONE COMPANY, Respondent, v. SUPERVISOR OF TOWN OF OYSTER BAY et al., Appellants, et al., Defendant. (And a Third-Party Action.) (Action No. 1.) NEW YORK TELEPHONE COMPANY, Respondent,

Motion by the plaintiff to dismiss the appeal, in effect, on the ground that the issues on appeal could have been raised on a prior appeal from an order of the same court entered December 26, 2002, which was determined by decision and order of this Court dated April 12, 2004 ( see New York Tel. Co. v Supervisor of Town of Oyster Bay, 6 AD3d 511, affd 4 NY3d 387). By decision and order on motion of this Court dated March 27, 2006, the motion to dismiss the appeal was held in abeyance and was referred to the Justices hearing the appeal for determination upon the argument or submission thereof.

Upon the papers filed in support of the motion, the papers filed in opposition thereto, and upon the argument of the appeal, it is,

Ordered that the motion is granted and the appeal is dismissed, with costs to the plaintiff.

Since the issues raised by the appellants herein could have been raised on a prior appeal, they waived appellate review of those issues ( see Young v Tseng, 23 AD3d 552).

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TELEPHONE v. OYSTER
(Dec 5, 2006)