Opinion
June 12, 1989
Appeal from the Supreme Court, Queens County (Lonschein, J.).
Ordered that the order dated January 25, 1988 is affirmed; and it is further,
Ordered that the appeal from the order dated April 26, 1988 is dismissed, as no appeal lies from the denial of a motion for reargument; and it is further,
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; Arslanian v. Volkswagen of Am., 121 A.D.2d 492; Cohalan v Johnson Elec. Constr. Corp., 105 A.D.2d 770; Everitt v. Health Maintenance Center, 86 A.D.2d 224). 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; Ojeda v. Metropolitan Playhouse, 120 A.D.2d 717). 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.
The Supreme Court properly exercised its discretion by denying the plaintiff's motion to vacate her default in appearing at the preliminary conference. It appears from a review of the papers submitted in connection with that motion that the plaintiff not only failed to appear at the conference held on June 24, 1987, but that she also failed to appear at two prior court-ordered depositions. The excuses offered in support of these several defaults were vague and contradictory, and no adequate affidavit of merit was produced. Under these circumstances, her motion was properly denied (see, CPLR 3126; see, Walk Smile v. 2491 Atl. Ave. Corp., 150 A.D.2d 366).
The plaintiff's second motion presented certain additional evidence, but no excuse was offered as to why the additional material could not have been submitted earlier. Thus, that motion was, in effect, a motion for reargument, the denial of which is not appealable (see, Matter of Bosco, 141 A.D.2d 639, 640). Mangano, J.P., Bracken, Kunzeman and Eiber, JJ., concur.