Rivera v. City of New York

7 A.D.3d 774, 776 N.Y.S.2d 867, 2004 N.Y. App. Div. LEXIS 7259

Opinion

In an action to recover damages for personal injuries, the defendant Weirfield Coal Co., Inc., appeals from (1) stated portions of an order of the Supreme Court, Kings County (Bernstein, J.), dated May 23, 2002, which, inter alia, denied that branch of its cross motion which was to renew a prior motion to vacate a default judgment, and (2) a judgment of the same court dated July 9, 2002, which is in favor of the plaintiff and against it in the principal sum of $32,760, and the plaintiff cross-appeals from stated portions of the order and judgment. Application by the plaintiff to withdraw the cross appeals.

Ordered that the application is granted and the cross appeals are dismissed as withdrawn, without costs or disbursements; and it is further,

Ordered that the appeal from the order is dismissed, without costs or disbursements; and it is further,

Ordered that the judgment is affirmed, without costs or disbursements.

The appeal from the intermediate 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 [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 Supreme Court properly denied the motion of the defendant Weirfield Coal Co., Inc. (hereinafter the defendant), to renew a prior motion to vacate a default judgment entered against it many years earlier.

The defendant’s remaining contentions are without merit. Smith, J.P., Krausman, Crane and Mastro, JJ., concur.