Hrynyk v. Glidden Co.

Appellate Division of the Supreme Court of New York

Hrynyk v. Glidden Co.

267 A.D.2d 967, 701 N.Y.S.2d 680, 1999 N.Y. App. Div. LEXIS 13679

Appellate Division of the Supreme Court of the State of New York·Decided December 30, 1999·Published

Opinion

—Appeal unanimously dismissed without costs. Memorandum: Plaintiff appeals from an order denying his motion to vacate a prior order dismissing the action for failure to prosecute. The appeal must be dismissed. Plaintiffs remedy was a direct appeal from the prior order dismissing the action, not from the order denying the motion to vacate (see, Banner Serv. Corp. v Hall, 185 AD2d 613; Champion v Wilsey, 150 AD2d 833, 834). In any event, Supreme Court properly dismissed the action for failure to prosecute. Plaintiff failed to establish a reasonable excuse for his inability to proceed to trial (see, Allied Bldg. Prods. Corp. v Clarke, 187 AD2d 1036), and defendant established prejudice as a result of plaintiffs inability to proceed (see, Matter of Wynyard v Antique Co., 247 AD2d 265, 266). (Appeal from Order of Supreme Court, Onondaga County, Murphy, J. — Vacate Order.) Present — Den-man, P. J., Green, Pigott, Jr., Hurlbutt and Balio, JJ.

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—Appeal unanimously dismissed without costs. Memorandum: Plaintiff appeals from an order denying his motion to vacate a prior order dismissing the action for failure to prosecute. The appeal must be dismissed. Plaintiffs remedy was a direct appeal from the prior order dismissing the action, not from the order denying the motion to vacate (see, Banner Serv. Corp. v Hall, 185 AD2d 613; Champion v Wilsey, 150 AD2d 833, 834). In any event, Supreme Court properly dismissed the action for failure to prosecute. Plaintiff failed to establish a reasonable excuse for his inability to proceed to trial (see, Allied Bldg. Prods. Corp. v Clarke, 187 AD2d 1036), and defendant established prejudice as a result of plaintiffs inability to proceed (see, Matter of Wynyard v Antique Co., 247 AD2d 265, 266). (Appeal from Order of Supreme Court, Onondaga County, Murphy, J. — Vacate Order.) Present — Den-man, P. J., Green, Pigott, Jr., Hurlbutt and Balio, JJ.

Hrynyk v. Glidden Co., 267 A.D.2d 967, 701 N.Y.S.2d 680, 1999 N.Y. App. Div. LEXIS 13679 (N.Y. Ct. App. 1999).

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Opinion

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