The opinion
Koreman, P. J., Mahoney and Herlihy, JJ., concur; Kane and Main, JJ., dissent and vote to affirm in the following memorandum by Main, J.: We dissent and would affirm. The plaintiff O’Hearn brought both a derivative action and an action on behalf of his infant daughter. The jury returned an unanimous verdict of no cause for action. Both actions were instituted individually by separate summonses and complaints and two separate judgments were rendered. The only notice of appeal filed was from the judgment in the derivative action. Upon discovery of this omission, plaintiff sought leave to amend the notice of appeal or, in the alternative, to file a late notice of appeal from the judgment in the infant’s action and the motion was denied and properly so. We conclude that the plaintiff’s failure to appeal from the judgment rendered in the infant’s action establishes his inability to recover from the defendant, for it is clear that: "An action by a parent to recover pecuniary loss sustained by reason of injuries inflicted *769 upon his child is derivative in nature to the extent that it depends upon the right of the child to recover for his injuries (Reilly v. Rawleigh, 245 App. Div. 190, 191 ). Such cause of action by a parent draws its life from the existence of the cause of action which inures to the benefit of the infant (Gergetti v. 29 Holding Corp., 31 N. Y. S. 2d 998, 1000).” (Kotary v Spencer Speedway, 47 AD2d 127, 129 .) Briefly translated, if an infant cannot recover in an action brought by her against the defendant, then her father cannot succeed upon his derivative cause of action against the defendant (Reilly v Rawleigh, 245 App Div 190, 191 ; McNally v Addis, 65 Misc 2d 204, 225 ; 15 NY Jur, Domestic Relations, § 407). The majority would now excuse the failure to file a notice of appeal deeming it an unintentional error or inadvertence. We perceive no authority for such a determination. The general equitable power conferred by statute on courts to extend the time fixed for doing any act (CPLR 2004) does not include the taking of an appeal, since it is expressly provided that no extension of time to take an appeal can be granted except as specifically provided (CPLR 5514, subd [c]; see 10 Carmody-Wait 2d, NY Prac, § 70.119, p 380). The exceptions to the "no extension” rule are set forth in CPLR 1022, 5514 and 5520 (e.g., death or disability of attorney, substitution of attorney, etc.). The only exception which could arguably apply is CPLR 5520 (subd [c]), but it deals with defects in form and presumes the existence of a timely filed notice of appeal and, therefore, provides no relief for the appellant here. In conclusion, we are constrained to conclude that plaintiffs omission to file a notice of appeal from the judgment in the infant’s action is a jurisdictional defect (see Ocean Acc. & Guar. Corp. v Otis Elevator Co., 291 NY 254 ) which the court may not remedy even though the error is understandable and the circumstances somewhat compelling (see, e.g., Poliak v Port Morris Bank, 257 NY 287 ). We would affirm.