Opinion
January 31, 1992
Appeal from the Supreme Court, Erie County, Sedita, J.
Present — Denman, P.J., Callahan, Boomer, Lawton and Davis, JJ.
Order unanimously affirmed without costs. Memorandum: Inasmuch as defendants failed to appeal from Supreme Court's order settling the record on appeal, we decline to consider the propriety of that order. While it was inappropriate for the court to rely on oral representations made by plaintiff's counsel in opposition to defendant's CPLR 3216 motion (see, Wing v Chammas, 78 A.D.2d 887, 888), on the present record, we conclude that the court did not abuse its discretion in refusing to grant defendants' motion unconditionally.