Gloria Lawrence v Shazriar Sotudeh

Lawrence v Sotudeh 2004 NY Slip Op 01550 [5 AD3d 445] March 8, 2004 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, May 26, 2004

Gloria Lawrence, Appellant,
v
Shazriar Sotudeh, Respondent.

—In an action to recover damages for medical malpractice, the plaintiff appeals from an order of the Supreme Court, Westchester County (DiBlasi, J.), dated December 10, 2002, which dismissed the complaint upon the plaintiff's failure to appear at a status conference as directed by a prior court order.

Ordered that the appeal is dismissed, with costs to the respondent.

No appeal lies from an order made upon the default of the appealing party (see CPLR 5511; Kandel v Hoffman, 309 AD2d 904 [2003]). The proper procedure would have been for the plaintiff to move to open her default and to vacate the order dated December 10, 2002, and if necessary, appeal from the denial of the motion to vacate (see Grober v Busigo, 133 AD2d 389 [1987]; Imor v Imor, 114 AD2d 552, 553 [1985]). Ritter, J.P., S. Miller, Townes, Crane and Rivera, JJ., concur.