Gallo v. Melmarkets, Inc.

245 A.D.2d 542, 666 N.Y.S.2d 501, 1997 N.Y. App. Div. LEXIS 13370

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 29, 1997
• 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 (Murphy, J.), dated February 7, 1997, which granted the defendant’s motion for summary judgment dismissing the complaint, and (2) a judgment of the same court dated June 12, 1997, which dismissed the complaint.

Ordered that the appeal from the order is dismissed; and it is further,

Ordered that the judgment is reversed, on the law, the order is vacated, and the motion is denied; and it is further,

Ordered that the appellant 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 the judgment in the action (see, Matter of Aho, 39 NY2d 241, 248). The issues raised on the 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 affidavit of Tonina Apath submitted by the plaintiff in opposition to the defendant’s motion for summary judgment raised triable issues of fact as to whether the defendant had actual notice of the debris in the meat department upon which the plaintiff slipped and fell (see, Indig v Finkelstein, 23 NY2d 728, 729; Gordon v Waldbaum, Inc., 231 AD2d 673). Mangano, P. J., Copertino, Joy, Florio and Luciano, JJ., concur.