Pecoraro v. Board of Education of Van Corlaer Elementary School

Yesawich Jr., J. Appeal from an order of the Supreme Court (Doran, J.), entered October 16, 1992 in Schenectady County, which granted defendant’s motion to dismiss the complaint. [770] When plaintiff failed to appear on October 6, 1992, the day set — some six months earlier — for the trial of this negligence action, defendant moved to dismiss the complaint on grounds of abandonment and failure to prosecute. The motion was granted in an order entered October 16, 1992 from which plaintiff appeals. On November 16, 1992, the same day he filed the notice of appeal from that order, plaintiff also moved to reargue the motion to dismiss, to vacate the dismissal order and to restore the action to the trial calendar. He contended that the substitution of counsel necessitated by his former attorney’s retirement constituted a justifiable excuse for his failure to appear. Supreme Court denied plaintiff’s motion in its entirety, finding that the root of the problem was plaintiff’s failure to communicate with his attorney, and further that the attorney affidavit, to which plaintiff’s deposition testimony was attached, did not satisfactorily demonstrate that plaintiff’s claim was meritorious. An order reflecting this disposition was entered on March 10, 1993. Plaintiff has not appealed from this latter order, but rather argues that CPLR 5517 (b) applies, and therefore that appellate review of this order is authorized. We disagree. As no appeal lies from an order granting dismissal of the complaint by reason of a plaintiff’s failure to appear for trial (see, Stehlik v City of New York, 22 AD2d 777, 778; see also, Myers & Co. v Owsley & Sons, 192 AD2d 927), the purported appeal from the order entered October 16, 1992 cannot serve as a predicate for review of the March 10, 1993 order denying the motion to vacate. Mikoll, J. P., Mercure, Crew III and White, JJ., concur. Ordered that the appeal is dismissed, without costs.