Are there any concerns that this interpretation of the nondiscretionary appeal statute will encourage frivolous appeals?

Defendants' concern that this interpretation of the statute will encourage plaintiffs to take frivolous appeals as of right that they have no intention of perfecting, while not unreasonable, is similarly overblown. A plaintiff who engages in such behavior would not be able to do so for long, inasmuch as the dismissal of the nondiscretionary appeal due to failure to perfect generally would foreclose any subsequent appeal of the same issues (see Rubeo v. National Grange Mut. Ins. Co., 93 N.Y.2d 750, 755756, 697 N.Y.S.2d 866, 720 N.E.2d 86 [1999] ). Furthermore, the intermediate appellate court presumably would not vacate the dismissal of the appeal without a compelling reason to do so.

[25 N.Y.3d 330]