Opinion
March 25, 1996
Appeal from the Supreme Court, Nassau County (DeMaro, J.).
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is affirmed; and it is further,
Ordered that the respondents are awarded one bill of costs.
The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action ( see, Matter of Aho, 39 N.Y.2d 241, 248). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment ( see, CPLR 5501 [a] [1]).
The Supreme Court did not improvidently exercise its discretion by dismissing the complaint because the plaintiff failed to appear at a deposition. That the plaintiff's conduct was willful and contumacious can be inferred from his repeated failure to comply with court orders directing depositions and his inadequate excuses for his defaults ( see, CPLR 3126; Mills v Ducille, 170 A.D.2d 657). Additionally, although not required by statute, the plaintiff failed to include an affidavit of merit with the papers he submitted in opposition to the defendants' cross motion. The absence of such an affidavit may be taken into account in determining the propriety of the Supreme Court's exercise of its discretion ( see, Recht v Teuscher, 176 A.D.2d 863), which in this case was proper. Mangano, P.J., Thompson, Friedmann, Florio and McGinity, JJ., concur.