Moody v. Burgos
| Decision Date | 12 June 1989 |
| Citation | 542 N.Y.S.2d 334,151 A.D.2d 555 |
| Parties | Saverna MOODY, Appellant, v. Jose M. BURGOS, et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Eugene Litman, P.C., New York City (Karen Hutson, of counsel), for appellant.
Ahmuty, Demers & McManus, Albertson (Daniel G. Sergiacomi, of counsel), for respondents.
Before MANGANO, J.P., and BRACKEN, KUNZEMAN and EIBER, JJ.
MEMORANDUM BY THE COURT.
In an action to recover damages for personal injuries, the plaintiff appeals (1) from an order of the Supreme Court, Queens County (Lonschein, J.), dated January 25, 1988, which denied her motion to vacate her default in appearing at a preliminary conference, and (2) from an order of the same court, dated April 26, 1988, which, in effect, denied her motion for reargument.
ORDERED that the respondents are awarded one bill of costs.
On June 24, 1987, a preliminary conference was held in this case. The plaintiff failed to appear, either personally or by an attorney. The court dismissed her action. In a separate order, a pending motion to dismiss the complaint was then denied on the basis that the motion to dismiss was "moot [the plaintiff's] action having been dismissed by order of the court at [the] preliminary conference held on June 24, 1987".
It is not absolutely clear whether the purported order dismissing the complaint issued by the court at the conference held on June 24, 1987, was based on a prior motion made on notice (see, CPLR 5701[a][2]; Greenfield v. Greenfield, 147 A.D.2d 440, 537 N.Y.S.2d 558; Arslanian v. Volkswagen of Am., 121 A.D.2d 492, 504 N.Y.S.2d 13; Cohalan v. Johnson Electric Constr. Corp., 105 A.D.2d 770, 481 N.Y.S.2d 714; Everitt v. Health Maintenance Center, 86 A.D.2d 224, 449 N.Y.S.2d 713). It is also unclear whether the dismissal was merely oral, or whether it was embodied in a written document signed by the Judge (see, CPLR 2219[a]; Blaine v. Meyer, 126 A.D.2d 508, 510 N.Y.S.2d 628; Ojeda v. Metropolitan Playhouse, Inc., 120 A.D.2d 717, 502 N.Y.S.2d 776). Further, the purported order was entered upon the plaintiff's default. Thus, the plaintiff had no right to appeal from the purported order dismissing the complaint, and the defendants' contention that the plaintiff's failure to appeal from that purported order precluded the Supreme Court from entertaining her subsequent motion to vacate her default in appearing at the preliminary conference is without merit.
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