Ola Ali Abushihadeh v. Bravo

142 A.D.3d 631, 36 N.Y.S.3d 822

Opinion

In an action to recover damages for personal injuries, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Ash, J.), dated April 1, 2015, as granted that branch of the plaintiffs motion which was for summary judgment on the issue of liability.

Ordered that the order is affirmed insofar as appealed from, with costs.

Contrary to the plaintiffs contention, the order appealed from was not entered on the defendants’ default such that the defendants are not aggrieved by the order (cf. CPLR 5511; Mixon v TBV, Inc., 76 AD3d 144 [2010]). The Supreme Court granted the motion on the merits after a review of the arguments presented by both parties. Hence, the order appealed from was not granted on default and the defendants may appeal therefrom (see Matter of 144 Stuyvesant, LLC v Goncalves, 119 AD3d 695, 696 [2014]; Schlain v Women’s Radiology, 305 AD2d 173, 174 [2003]; Jann v Cassidy, 265 AD2d 873, 874 [1999]; cf. Thompson v Next Generation Corp., 240 AD2d 653, 654 [1997]).

The plaintiff made a prima facie showing of entitlement to judgment as a matter of law on the issue of liability (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). In opposition, the defendants failed to raise a triable issue of fact. Accordingly, the Supreme Court properly granted that branch of the plaintiffs motion which was for summary judgment on the issue of liability.

Mastro, J.R, Cohen, Connolly and Brathwaite Nelson, JJ., concur.