Donohue v. LeFebure, Inc.

277 A.D.2d 277, 715 N.Y.S.2d 664, 2000 N.Y. App. Div. LEXIS 11782

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 13, 2000
• Status: Published

Opinion

—In an action to recover damages for personal injuries, etc., the plaintiffs appeal from (1) an order of the Supreme Court, Richmond County (Sangiorgio, J.), dated July 7, 1999, which granted the defendant’s motion for summary judgment dismissing the complaint and denied, as academic, their cross motion to amend the bill of particulars, and (2) a judgment of the same court dated October 26, 1999, which dismissed the complaint.

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 respondent is 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 NY2d 241). 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 defendant established prima facie that it neither breached a duty to the injured plaintiff nor created or had actual or constructive notice of the allegedly dangerous condition which caused the injured plaintiff’s accident (see, Gordon v American Museum of Natural History, 67 NY2d 836; Williams v Healy Intl. Corp., 240 AD2d 403). Since the plaintiffs failed to offer any evidence to establish the existence of a triable issue of fact, the Supreme Court properly granted summary judgment to the defendant and dismissed the complaint.

The plaintiffs’ remaining contentions are without merit. Goldstein, J. P., McGinity, Luciano and Feuerstein, JJ., concur.