Dolne v. Village of Ossining

Appellate Division of the Supreme Court of New York

Dolne v. Village of Ossining

294 A.D.2d 464, 742 N.Y.S.2d 558, 2002 N.Y. App. Div. LEXIS 5218

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 20, 2002

StatusPublished

This text of 294 A.D.2d 464 (Dolne v. Village of Ossining) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Dolne v. Village of Ossining, 294 A.D.2d 464, 742 N.Y.S.2d 558, 2002 N.Y. App. Div. LEXIS 5218 (N.Y. Ct. App. 2002).

Pincite

Opinion

—In an action to recover damages for personal injuries, the plaintiff appeals (1), as limited by her brief, from so much of an order of the Supreme Court, Westchester County (Bellantoni, J.), entered September 18, 2000, as denied that branch of her motion which was for partial summary judgment on the issue of liability, and (2) from a judgment of the same court (Barone, J.), entered August 15, 2001, which, upon a jury verdict, is in favor of the defendant and against her dismissing the complaint and awarding the defendant taxable costs for the service of subpoenas and the attendance of witnesses.

[465]*465Ordered that the appeal from the order is dismissed; and it is further,

Ordered that the judgment is modified, on the law, by deleting therefrom the provision awarding the defendant $380 as a disbursement for the attendance of witnesses; as so modified, the judgment is affirmed; and it is further,

Ordered that one bill of costs is awarded to the defendant.

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 NY2d 241, 248). The issues raised on 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 correctly determined that a triable issue of fact existed with respect to whether the defendant, Village of Ossining, through its police officers, acted reasonably under the circumstances to protect the plaintiffs safety and whether any negligence on the part of the defendant was a proximate cause of the plaintiffs injuries (see Parvi v City of Kingston, 41 NY2d 553, 559-560; Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315-316; Greenan v Brown, 140 AD2d 488, 489; cf. Thomas v State of New York, 46 NY2d 1043, 1044).

We modify the judgment to delete the provision thereof awarding the defendant $380 for the attendance of witnesses at trial. The defendant offered no explanation or justification for this disbursement.

The plaintiffs remaining contentions are without merit. Sandra J. Feuerstein, J.P., Krausman, Luciano and Crane, JJ., concur.

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—In an action to recover damages for personal injuries, the plaintiff appeals (1), as limited by her brief, from so much of an order of the Supreme Court, Westchester County (Bellantoni, J.), entered September 18, 2000, as denied that branch of her motion which was for partial summary judgment on the issue of liability, and (2) from a judgment of the same court (Barone, J.), entered August 15, 2001, which, upon a jury verdict, is in favor of the defendant and against her dismissing the complaint and awarding the defendant taxable costs for the service of subpoenas and the attendance of witnesses.

[465]*465Ordered that the appeal from the order is dismissed; and it is further,

Ordered that the judgment is modified, on the law, by deleting therefrom the provision awarding the defendant $380 as a disbursement for the attendance of witnesses; as so modified, the judgment is affirmed; and it is further,

Ordered that one bill of costs is awarded to the defendant.

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 NY2d 241, 248). The issues raised on 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 correctly determined that a triable issue of fact existed with respect to whether the defendant, Village of Ossining, through its police officers, acted reasonably under the circumstances to protect the plaintiffs safety and whether any negligence on the part of the defendant was a proximate cause of the plaintiffs injuries (see Parvi v City of Kingston, 41 NY2d 553, 559-560; Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315-316; Greenan v Brown, 140 AD2d 488, 489; cf. Thomas v State of New York, 46 NY2d 1043, 1044).

We modify the judgment to delete the provision thereof awarding the defendant $380 for the attendance of witnesses at trial. The defendant offered no explanation or justification for this disbursement.

The plaintiffs remaining contentions are without merit. Sandra J. Feuerstein, J.P., Krausman, Luciano and Crane, JJ., concur.

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294 A.D.2d 464, 742 N.Y.S.2d 558, 2002 N.Y. App. Div. LEXIS 5218, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dolne-v-village-of-ossining-nyappdiv-2002.

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