Fuduli v. FOJP Service Corp.

281 A.D.2d 455, 721 N.Y.S.2d 780, 2001 N.Y. App. Div. LEXIS 2330

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 12, 2001
• Status: Published

Opinion

—In an action to recover damages for personal injuries, the plaintiff appeals from (1) an order of the Supreme Court, Nassau County (Lally, J.), dated March 22, 2000, which granted the defendants’ cross motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d), and (2) a judgment of the same court, dated May 19, 2000, dismissing 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 respondents are 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 the 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]).

We agree with the Supreme Court that the appellant failed to come forward with sufficient admissible evidence to rebut the defendants’ initial showing that she did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). Thus, the defendants were entitled to summary judgment dismissing the complaint (see, Licari v Elliott, 57 NY2d 230). Bracken, Acting P. J., S. Miller, McGinity and Schmidt, JJ., concur.