McGee v. McAleer

277 A.D.2d 207, 715 N.Y.S.2d 867, 2000 N.Y. App. Div. LEXIS 11171

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 6, 2000
• Status: Published

Opinion

—In an action to recover damages for personal injuries, the plaintiff appeals from (1) an order of the Supreme Court, Suffolk County (Cohalan, J.), dated September 27, 1999, which denied his motion to vacate an order of the same court dated April 21, 1998, granting the defendant’s motion, inter alia, to dismiss the complaint upon his default in opposing the motion, and (2) a judgment of the same court, entered November 10, 1999, dismissing the complaint.

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 respondent is 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 NY2d 241, 248). The issues raised on appeal from the order are brought up for review and have been considered on the appeal from the judgment (see, CPLR 5501 [a] [1]).

Although the judgment entered November 10, 1999, was entered upon the plaintiff’s default, appellate review of the order dated September 27, 1999, is not precluded since the plaintiff may obtain review of “matters which were the subject of contest below” (James v Powell, 19 NY2d 249, 256, n 3).

The, Supreme Court providently exercised its discretion in refusing to vacate the order entered upon the plaintiffs default in opposing the defendant’s motion, inter alia, to dismiss the complaint. The plaintiff failed to demonstrate both a reasonable excuse for the default and the existence of a meritorious claim (see, Thattil v Mondesir, 275 AD2d 408; Putney v Pearl-man, 203 AD2d 333; DeVito v Marine Midland Bank, 100 AD2d 530, 531). Ritter, J. P., Santucci, Goldstein and Feuerstein, JJ., concur.