Larraceleta v. Darling-Delaware Company, Inc.

221 A.D.2d 419, 633 N.Y.S.2d 1012, 1995 N.Y. App. Div. LEXIS 11998

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 13, 1995
• Status: Published

Opinion

—In an action to recover damages for personal injuries, etc., the plaintiffs appeal from (1) an order of the Supreme Court, Suffolk County (Cannavo, J.), dated May 9, 1994, which granted the defendant’s motion for summary judgment dismissing the complaint, and (2) a judgment of the same court, dated June 10, 1994, entered upon the order.

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 defendant 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, 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]).

In order to state a prima facie case of negligence, the plaintiffs must demonstrate that the defendant created the condition which caused the injury or that it had actual or constructive notice of the condition (see, Capitelli v KingKullen Grocery Co., 207 AD2d 325; Batiancela v Staten Is. Mall, 189 AD2d 743). Here, even if we view the evidence in a light most favorable to the plaintiffs, such a demonstration was not made. Accordingly, the Supreme Court properly granted the defendant’s motion for summary judgment. Balletta, J. P., Rosenblatt, Pizzuto, Joy and Altman, JJ., concur.