Syed v. Fedor

Jul 1, 2002
Versions:296 A.D.2d 399
745 N.Y.S.2d 443
2002 N.Y. App. Div. LEXIS 7083

In an action to recover damages for personal injuries, the plaintiff appeals from (1) a decision of the Supreme Court, Westchester County (Donovan, J.), dated August 27, 2001, and (2) an order of the same court, entered December 7, 2001, which upon, inter alia, the dismissal of the action upon the plaintiff’s failure to appear at a scheduled conference, denied his motion to restore the action and to place it on the trial calendar.

Ordered that the appeal from the decision is dismissed, as no appeal lies from a decision (see Schicchi v Green Constr. Corp., 100 AD2d 509); and it is further,

Ordered that the order is affirmed; and it is further,

Ordered that one bill of costs is awarded to the defendants.

The Supreme Court properly dismissed the action upon the plaintiff’s failure to appear at a scheduled conference (see 22 NYCRR 202.27 [b]). Moreover, the Supreme Court providently exercised its discretion in denying the plaintiff’s motion to restore the action and to place it on the trial calendar. A case dismissed pursuant to 22 NYCRR 202.27 may be restored only if the plaintiff can demonstrate both a reasonable excuse for the default in failing to appear at the conference, and a meritorious cause of action (see Lopez v Imperial Delivery Serv., 282 AD2d 190, 197). Since the plaintiff demonstrated neither, the motion was properly denied. Santucci, J.P., Smith, Krausman, H. Miller and Adams, JJ., concur.