CIRCELLI v. GOODMAN (1999)

Supreme Court, Appellate Division, Second Department, New York.

Anthony CIRCELLI, et al., appellants, v. Faith L. GOODMAN, et al., respondents.

Decided: June 21, 1999

SONDRA MILLER, J.P., THOMAS R. SULLIVAN, WILLIAM D. FRIEDMANN, DANIEL F. LUCIANO and SANDRA J. FEUERSTEIN, JJ.

James R. Filenbaum, Suffern, N.Y., for appellants. William A. Medican, Goshen, N.Y. (Richard B. Schoenberg of counsel), for respondents.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Orange County (Peter C. Patsalos, J.), dated July 10, 1998, which granted the defendants' motion to dismiss the complaint upon the plaintiffs' default in appearing at trial.

ORDERED that the appeal is dismissed, with costs.

No appeal lies from an order made upon the default of the aggrieved party (see, CPLR 5511; High v. Coletti, 143 A.D.2d 810, 533 N.Y.S.2d 122). The proper procedure was for the plaintiffs to move to open their default and to vacate the order dated July 10, 1998, and, if necessary, to appeal from the denial of the motion to vacate (see, High v. Coletti, supra).

MEMORANDUM BY THE COURT.

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