Grober v. Busigo

133 A.D.2d 389, 519 N.Y.S.2d 344, 1987 N.Y. App. Div. LEXIS 49885

Opinion

—In an action on an account stated, the plaintiff appeals from an order of the Supreme Court, Westchester County (Martin, J.), entered May 13, 1986, which, sua sponte, dismissed the action and directed the plaintiff’s attorney to pay $250 costs to the defendant.

Ordered that the appeal is dismissed, without costs or disbursements.

The order dismissing the plaintiff’s action with prejudice and assessing costs resulted from the plaintiff’s default in appearing at a pretrial conference pursuant to a direction contained in a prior order, dated April 18, 1986. No appeal lies from an order or judgment entered upon the default of the aggrieved party (see, CPLR 5511; Boylan v Health Ins. Plan, 74 AD2d 835, 836; Wolfensteller v Frank, 50 AD2d 846), and the plaintiff should have sought to open the default by moving in the Supreme Court to vacate the order in question (see, Imor v Imor, 114 AD2d 552). Mollen, P. J., Bracken, Niehoff and Lawrence, JJ., concur.