Porreco v. Selway

225 A.D.2d 752, 640 N.Y.2d 171, 640 N.Y.S.2d 171, 1996 N.Y. App. Div. LEXIS 3214

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 25, 1996
• Status: Published

Opinion

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 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 plaintiffs 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 [3]; Mills v Ducille, 170 AD2d 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 AD2d 863), which in this case was proper. Mangano, P. J., Thompson, Friedmann, Florio and McGinity, JJ., concur.