Magowitz v. Reeves

272 A.D.2d 302, 707 N.Y.S.2d 892, 2000 N.Y. App. Div. LEXIS 4798

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 1, 2000
• Status: Published

Opinion

—In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from (1) so much of an order of the Supreme Court, Putnam County (Hickman, J.), dated November 30, 1998, as granted the defendants’ motion for summary judgment and denied their cross motion to impose a sanction, and (2) a judgment of the same court dated March 5, 1999, which dismissed the action.

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 respondents are awarded one bill of costs.

The appeal from the 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]).

The defendants established their prima facie entitlement to summary judgment as a matter of law by demonstrating that the defendant driver did not owe a duty to the injured plaintiff under the circumstances giving rise to the subject accident (see, CPLR 3212 [b]; Alvarez v Prospect Hosp., 68 NY2d 320; Zuckerman v City of New York, 49 NY2d 557). The papers submitted in opposition were insufficient to raise a triable issue of fact.

The plaintiffs’ remaining contentions are without merit. Santucci, J. P., Altman, Friedmann and McGinity, JJ., concur.