Nazario v. Chavez

306 A.D.2d 391, 761 N.Y.S.2d 490

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 16, 2003
• 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 (Underwood, J.), entered May 8, 2002, which granted the defendants’ motion for summary judgment dismissing the complaint, and (2) a judgment of the same court entered June 28, 2002, which, upon the order, dismissed the complaint.

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 entry of the judgment in the action (see Matter of Aho, 39 NY2d 241, 248 [1976]). 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 this action where the plaintiff Raymond Nazario alleges that he slipped and fell on snow and/or ice on the defendants’ premises, the Supreme Court properly granted summary judgment to the defendants dismissing the complaint. The defendants presented evidence that when Mr. Nazario slipped and fell it was either still snowing or the snowfall had only just stopped (see Joseph v Danice Stores of Nostrand Ave., 290 AD2d 536 [2002]). In opposition, the plaintiffs could only speculate that the fall was caused by preexisting ice (see Bernstein v City of New York, 69 NY2d 1020 [1987]; Smith v 1327 Jefferson Realty, 300 AD2d 466 [2002]; Pelliccio v TCW Realty Fund VIA Holding Co., 291 AD2d 388 [2002]). Altman, J.P., Goldstein, McGinity and Mastro, JJ., concur.