Levy v. Waldbaum, Inc.

13 A.D.3d 417, 785 N.Y.S.2d 702, 2004 N.Y. App. Div. LEXIS 15199

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 13, 2004
• 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 (Cozzens, J.), dated May 12, 2003, which granted the defendants’ motion for summary judgment dismissing the complaint, and (2) a judgment of the same court entered July 10, 2003, which, upon the order, dismissed the complaint. The notice of appeal from the order is deemed also to be a notice of appeal from the judgment (see CPLR 5501 M).

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 one bill of costs is awarded to the defendants.

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 [1976]). 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]).

The defendants met their prima facie burden of proving that they neither created nor had actual or constructive notice of the allegedly dangerous condition upon which the plaintiff slipped and fell (see Alvarez v Prospect Hosp., 68 NY2d 320, 325 [1986]; Gordon v American Museum of Natural History, 67 NY2d 836 [1986]; Breuer v Wal-Mart Stores, 289 AD2d 276, 277 [2001]). In opposition, the plaintiff failed to sustain his burden of showing the existence of a triable issue of fact (see Yearwood v Cushman & Wakefield, 294 AD2d 568 [2002]).

Accordingly, the defendants’ motion was properly granted. H. Miller, J.P, Goldstein, Crane and Skelos, JJ., concur.