Rivera v. Allstate Life Ins. Co. of N.Y.

2016 NY Slip Op 7175, 144 A.D.3d 658, 39 N.Y.S.3d 815

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 2, 2016
• Docket: 2015-06345
• Status: Published

Opinion

—In an action to recover the proceeds of a life insurance policy, the defendant appeals from (1) an order of the Supreme Court, Suffolk County (Baisley, Jr., J.), dated June 16, 2015, which granted the plaintiffs motion for summary judgment on the complaint, and (2) a judgment of the same court entered September 28, 2015, which, upon the order, is in favor of the plaintiff and against it in the principal sum of $100,000. The notice of appeal from the order is deemed also to be a notice of appeal from the judgment (see CPLR 5501 [c]).

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 plaintiff.

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the 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]).

The plaintiff established, through his evidentiary submissions, his prima facie entitlement to judgment as a matter of law on his cause of action to recover the proceeds of the subject life insurance policy. In opposition, the defendant failed to raise a triable issue of fact.

The defendant’s remaining contentions are either improperly before this Court because they were raised for the first time on appeal or without merit.

Accordingly, the Supreme Court properly granted the plaintiff’s motion for summary judgment on the complaint.

Rivera, J.P., Austin, Sgroi and Duffy, JJ., concur.