Grgurovic v. Controlled Combustion Co.

Because the judgment sought to be appealed did not result from an order deciding a motion “made upon notice” as contemplated by CPLR 5701 (a) (2), it is not appealable as of right (see Jun-Yong Kim v A&J Produce Corp., 15 AD3d 251, 252 [2005]). However, we deem the notice of appeal a motion for leave to appeal pursuant to CPLR 5701 (c), and we grant the motion (see id.). On the merits, the court providently exercised its discretion by dismissing the complaint as against defendants. Plaintiffs repeatedly failed to comply with the court’s discovery orders. Their wilfulness can be inferred from the surrounding circumstances (see Youni Gems Corp. v Bassco Creations Inc., 70 AD3d 454, 455 [2010], lv dismissed 15 NY3d 863 [2010]). We have considered plaintiffs’ remaining contentions and find them unavailing. Concur — Gonzalez, EJ., Friedman, Moskowitz, Freedman and Román, JJ.