From Casetext: Smarter Legal Research

Porreco v. Selway

Appellate Division of the Supreme Court of New York, Second Department
Mar 25, 1996
225 A.D.2d 752 (N.Y. App. Div. 1996)

Opinion

March 25, 1996

Appeal from the Supreme Court, Nassau County (DeMaro, J.).


Ordered that the appeal from the order is dismissed; and it is further,

Ordered that the judgment is affirmed; and it is further,

Ordered that the respondents are awarded one bill of costs.

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action ( see, Matter of Aho, 39 N.Y.2d 241, 248). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment ( see, CPLR 5501 [a] [1]).

The Supreme Court did not improvidently exercise its discretion by dismissing the complaint because the plaintiff failed to appear at a deposition. That the plaintiff's conduct was willful and contumacious can be inferred from his repeated failure to comply with court orders directing depositions and his inadequate excuses for his defaults ( see, CPLR 3126; Mills v Ducille, 170 A.D.2d 657). Additionally, although not required by statute, the plaintiff failed to include an affidavit of merit with the papers he submitted in opposition to the defendants' cross motion. The absence of such an affidavit may be taken into account in determining the propriety of the Supreme Court's exercise of its discretion ( see, Recht v Teuscher, 176 A.D.2d 863), which in this case was proper. Mangano, P.J., Thompson, Friedmann, Florio and McGinity, JJ., concur.


Summaries of

Porreco v. Selway

Appellate Division of the Supreme Court of New York, Second Department
Mar 25, 1996
225 A.D.2d 752 (N.Y. App. Div. 1996)
Case details for

Porreco v. Selway

Case Details

Full title:LOUIS J. PORRECO, Appellant, v. STEPHEN J. SELWAY et al., Respondents

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Mar 25, 1996

Citations

225 A.D.2d 752 (N.Y. App. Div. 1996)
640 N.Y.S.2d 171

Citing Cases

Ordonez v. Guerra

Therefore, contrary to the position of our dissenting colleague, although the plaintiff provided the…

Wiltos v. 1230 Park Owners, Inc.

The Supreme Court improvidently exercised its discretion in denying that branch of the defendants' motion…