Preston v. Smith

Appellate Division of the Supreme Court of New York

Preston v. Smith

217 A.D.2d 973, 631 N.Y.S.2d 265, 1995 N.Y. App. Div. LEXIS 8404

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJuly 14, 1995

StatusPublished

This text of 217 A.D.2d 973 (Preston v. Smith) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Preston v. Smith, 217 A.D.2d 973, 631 N.Y.S.2d 265, 1995 N.Y. App. Div. LEXIS 8404 (N.Y. Ct. App. 1995).

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Opinion

Judgment unanimously affirmed without costs. Memorandum: A judgment was entered after the entry of the order from which this appeal was taken. "Where a prior order is subsumed within a judgment, the appeal is from the judgment, not the prior order” (Hughes v Nussbaumer, Clarke & Velzy, 140 AD2d 988). Absent prejudice to respondent, this Court may, in its discretion, treat the notice of appeal as one taken from the judgment (see, CPLR 5520 [c]; Hughes v Nussbaumer, Clarke & Velzy, supra). We so exercise our discretion in this case and affirm the judgment for reasons stated in the decision at Supreme Court (Frazee, J.). (Appeal from Judgment of Supreme Court, Monroe County, Frazee, J.—Summary Judgment.) Present—Lawton, J. P., Fallon, Wesley, Callahan and Doerr, JJ.

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Judgment unanimously affirmed without costs. Memorandum: A judgment was entered after the entry of the order from which this appeal was taken. "Where a prior order is subsumed within a judgment, the appeal is from the judgment, not the prior order” (Hughes v Nussbaumer, Clarke & Velzy, 140 AD2d 988). Absent prejudice to respondent, this Court may, in its discretion, treat the notice of appeal as one taken from the judgment (see, CPLR 5520 [c]; Hughes v Nussbaumer, Clarke & Velzy, supra). We so exercise our discretion in this case and affirm the judgment for reasons stated in the decision at Supreme Court (Frazee, J.). (Appeal from Judgment of Supreme Court, Monroe County, Frazee, J.—Summary Judgment.) Present—Lawton, J. P., Fallon, Wesley, Callahan and Doerr, JJ.

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Bluebook (online)

217 A.D.2d 973, 631 N.Y.S.2d 265, 1995 N.Y. App. Div. LEXIS 8404, Counsel Stack Legal Research, https://law.counselstack.com/opinion/preston-v-smith-nyappdiv-1995.

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