Kelly v. Long Island College Hospital

—In an action to recover damages for wrongful death, the plaintiff appeals from an order of the Supreme Court, Kings County (Levine, J.), dated February 13, 1991, which dismissed the complaint upon the plaintiff’s attorney’s default in appearing at a preliminary conference. 245 Ordered that the appeal is dismissed, without costs or disbursements. It is clear from the record, and the explicit wording of the order itself, that the Supreme Court dismissed the complaint based upon the plaintiffs attorney’s default in appearing at a preliminary conference ordered by the court. It is well settled that no appeal lies from an order entered upon the default of the appealing party (see, CPLR 5511). Contrary to the contention of our dissenting colleagues, that the plaintiff submitted a proposed counterorder and an affidavit in support thereof does not serve to take this order out of the realm of a default. While the plaintiffs attorney may have a justifiable excuse for his failure to appear, the appropriate procedure by which to raise such a claim is a motion to vacate the default, which must be supported by an affidavit of merit (see, Podolsky v Podolsky, 119 AD2d 740). We see no reason to depart from that customary procedure in this case. Bracken, J. P., Lawrence and Santucci, JJ., concur.