Teichman v. Birbrower

126 A.D.2d 543, 510 N.Y.S.2d 481, 1987 N.Y. App. Div. LEXIS 41677

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 12, 1987
• Status: Published

Opinion

—In an action to recover damages for legal malpractice, the plaintiff appeals from (1) an order of the Supreme Court, Westchester County (Ritter, J.), dated August 6, 1985, which granted the defendant’s motion to dismiss the action for failure to timely serve a complaint and denied her cross motion to compel acceptance of the complaint; and (2) a judgment of the same court entered August 27, 1985 dismissing the action.

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 defendant 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 (CPLR 5501 [a] [1]).

Special Term did not abuse its discretion in declining to excuse the plaintiff’s default since it affirmatively appears from the record that the complaint is without merit. Thompson, J. P., Niehoff, Weinstein, Kunzeman and Spatt, JJ., concur.