Lampel v. Sergel

Appellate Division of the Supreme Court of New York

Lampel v. Sergel

297 A.D.2d 709, 747 N.Y.2d 395, 747 N.Y.S.2d 395, 2002 N.Y. App. Div. LEXIS 8665

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

DecidedSeptember 23, 2002

StatusPublished

Cited by1 cases

This text of 297 A.D.2d 709 (Lampel v. Sergel) 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

Lampel v. Sergel, 297 A.D.2d 709, 747 N.Y.2d 395, 747 N.Y.S.2d 395, 2002 N.Y. App. Div. LEXIS 8665 (N.Y. Ct. App. 2002).

Pincite

Opinion

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 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]).

Upon the prima facie showing by the defendant Priscilla Herdman of her entitlement to judgment as a matter of law, [710]*710the plaintiff was required to submit evidence in admissible form sufficient to demonstrate the existence of a triable issue of fact (see CPLR 3212 [b]; Alvarez v Prospect Hosp., 68 NY2d 320, 324; Zuckerman v City of New York, 49 NY2d 557, 562). Since the plaintiffs submission in opposition to the motion was not in admissible form and his attorney’s affirmation was of no evidentiary value (see Zuckerman v City of New York, supra), he failed to sustain his burden. Accordingly, the Supreme Court properly granted the respondent’s motion for summary judgment dismissing the complaint insofar as asserted against her.

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

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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 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]).

Upon the prima facie showing by the defendant Priscilla Herdman of her entitlement to judgment as a matter of law, [710]*710the plaintiff was required to submit evidence in admissible form sufficient to demonstrate the existence of a triable issue of fact (see CPLR 3212 [b]; Alvarez v Prospect Hosp., 68 NY2d 320, 324; Zuckerman v City of New York, 49 NY2d 557, 562). Since the plaintiffs submission in opposition to the motion was not in admissible form and his attorney’s affirmation was of no evidentiary value (see Zuckerman v City of New York, supra), he failed to sustain his burden. Accordingly, the Supreme Court properly granted the respondent’s motion for summary judgment dismissing the complaint insofar as asserted against her.

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

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Bluebook (online)

297 A.D.2d 709, 747 N.Y.2d 395, 747 N.Y.S.2d 395, 2002 N.Y. App. Div. LEXIS 8665, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lampel-v-sergel-nyappdiv-2002.

Opinion

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