[*1]
Guerriere v Simmons
2004 NY Slip Op 50315(U)
Decided on April 20, 2004
Appellate Term, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on April 20, 2004
SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM : 9th and 10th JUDICIAL DISTRICTS

PRESENT:McCABE, P.J., LIFSON and SKELOS, JJ.
NO. 2003-808 N C

DR. JOHN T. GUERRIERE and BARBARA GUERRIERE a/k/a BARBARA KERN, Appellants,

against

MAC SIMMONS, Respondent.


Appeal by plaintiffs from an order of the Small Claims Part of the District Court, Nassau County (J. Asarch, J.), entered February 10, 2003, dismissing plaintiffs' action for failure to appear at trial.


Appeal unanimously dismissed without costs.

The instant appeal is from an order dismissing the small claims action as a result of plaintiffs' failure to appear at trial. Since no appeal lies from an order entered upon default (see Flake v Van Wagenen, 54 NY 25 [1873]; Landmark Aviation v De Marmels,
63 AD2d 964 [1978]), the appeal is dismissed. We note that plaintiffs remedy was to move to vacate the default order in the court below and, if necessary, appeal the denial of that motion. [*2]
Decision Date: April 20, 2004