Brannigan v. Dubuque

199 A.D.2d 851, 606 N.Y.S.2d 401, 1993 N.Y. App. Div. LEXIS 12438

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 30, 1993
• Status: Published

Opinion

Mercure, J.

Appeal from an order of the Supreme Court (Hughes, J.), entered November 9, 1992 in Albany County, which granted plaintiff judgment by default on the issue of liability.

This personal injury action arises out of a September 1987 automobile accident. After the completion of discovery, plaintiff placed the case on the trial calendar and a pretrial conference was scheduled by Supreme Court. On the prescribed day, there was no appearance by either defendant or her attorney, as a result of which Supreme Court determined that "[defendant’s answer is stricken and plaintiff is granted judgment by default on the issue of liability, for defense counsel’s willful failure to appear at a scheduled pretrial conference”. Defendant now appeals.

Under the circumstances presented here, defendant’s failure to appear constituted a default (22 NYCRR 202.27 [a]) and it has been clearly established that no appeal lies from a default judgment. The proper procedure is to move to open the default in the court that issued the order and, if necessary, appeal from the denial of such motion (see, CPLR 5511; see also, CPLR 317, 5015 [a] [1]; Myers & Co. v Owsley & Sons, 192 AD2d 927; Cygielman v Cygielman, 111 AD2d 1057, 1058; Siegel, NY Prac § 293, at 423 [2d ed]).

Weiss, P. J., White, Mahoney and Casey, JJ., concur. Ordered that the appeal is dismissed, with costs.