(dissenting). I respectfully dissent. On the prior appeal, a majority of this Court determined that, pursuant to the escrow agreement between the parties, the $100,000 in escrow funds (funds) “were intended to be a deposit by defendant pending the negotiation of terms for the purchase of the corporation owned by plaintiffs” and, in view of the inability of the parties “to reach an agreement on the terms of the sale, defendant [was] entitled to the return of the [funds]” (Johnson v Optometrix, Inc., 75 AD3d 1073, 1074 [2010]). I conclude that plaintiffs’ attorney, as escrowee of the funds, did not comply with his “ ‘duty not to deliver the escrow [funds] to [anyone] except upon strict compliance with the conditions imposed’ by the escrow agreement” (Great Am. Ins. Co. v Canandaigua Natl. Bank & Trust Co., 23 AD3d 1025,1027-1028 [2005], lv dismissed 7 NY3d 741 [2006], quoting Farago v Burke, 262 NY 229, 233 [1933]), and plaintiffs should not have used the funds to give the undertaking essential to the stay of the order from which the prior appeal was taken (see CPLR 5519 [a] [2]). That stay allowed the funds to be withheld from defendant long enough for plaintiffs to commence the special proceeding pursuant to CPLR 5225 (b) in which this appeal had its genesis.
Even assuming, arguendo, that we considered and determined the propriety of plaintiffs’ deposit of the funds with the Monroe County Clerk in the prior appeal (Johnson, 75 AD3d 1073), we are not precluded from reexamining the issue here. Indeed, “[e]very court retains a continuing jurisdiction generally to reconsider any prior intermediate determination it has made” (Aridas v Caserta, 41 NY2d 1059, 1061 [1977]; see Faricelli v TSS Seedman’s, 94 NY2d 772, 774 [1999]).
In my view, under the circumstances of this case, it would be inequitable to withhold the funds from defendant, and plaintiffs should not benefit from their attorney’s breach of his obligation not to deliver the funds upon a condition other than one contemplated by the escrow agreement. Consequently, I would reverse the order and grant the motion for an order directing *1545the Monroe County Treasurer to pay the funds to defendant. Present — Scudder, P.J., Fahey, Garni, Sconiers and Martoche, JJ.