Romaniello v. Suffolk County Department of Public Works

271 A.D.2d 426, 706 N.Y.S.2d 889, 2000 N.Y. App. Div. LEXIS 3792

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 3, 2000
• 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 (Doyle, J.), dated March 17, 1999, which granted the defendants’ motion for summary judgment dismissing the first cause of action on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d), and (2) a judgment of the same court entered April 14, 1999, upon the order.

Ordered that the appeal from the order is dismissed; and it is further,

Ordered that the judgment is modified, on the law, by adding thereto a provision severing the second cause of action; as so modified, the judgment is affirmed; and it is further,

Ordered that the defendants are awarded one bill of costs.

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). The issues raised on appeal from the order are brought up for review and have been considered on the appeal from the judgment (see, CPLR 5501 [a] [1]).

We agree with the Supreme Court that the defendants submitted admissible evidence demonstrating that the injured plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d), and that the plaintiffs failed to come forward with competent evidence to create an issue of fact (see, DiNunzio v County of Suffolk, 256 AD2d 498; Russell v City of Mount Vernon, 256 AD2d 454; Stowe v Simmons, 253 AD2d 422; Miller v Donohue, 250 AD2d 825). O’Brien, J. P., Altman, Friedmann, McGinity and Smith, JJ., concur.