Hendryx v. Johnson Boys Ford-Mercury, Inc.

309 A.D.2d 1260, 765 N.Y.S.2d 549, 2003 N.Y. App. Div. LEXIS 10213

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 2, 2003
• Status: Published

Opinion

Appeal from a judgment of Supreme Court, Cattaraugus County (Brown, J.), entered July 19, 2002, which after a bench trial granted judgment in favor of defendants and dismissed the amended complaint.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Plaintiff appeals from an order granting defendants judgment dismissing the amended complaint after a bench trial. Although the order is subsumed in the judgment that was subsequently entered and the appeal properly lies from the judgment, not the order (see Chase Manhattan Bank v Roberts & Roberts, 63 AD2d 566, 567 [1978]), in the exercise of our discretion, we treat the notice of appeal as one taken from the judgment (see CPLR 5520 [c]; Hughes v Nussbaumer, Clarke & Velzy, 140 AD2d 988 [1988]).

Supreme Court properly granted judgment in favor of defendants and dismissed the amended complaint. Contrary to plaintiffs contentions, the court did not improvidently exercise its discretion in its rulings regarding the scope of cross-examination of plaintiff at trial (see Feldsberg v Nitschke, 49 NY2d 636, 643 [1980], rearg denied 50 NY2d 1059 [1980]). Present — Wisner, J.P., Hurlbutt, Kehoe and Lawton, JJ.