Silverman v. Bryan

216 A.D.2d 554, 628 N.Y.S.2d 565, 1995 WL 434450, 1995 N.Y. App. Div. LEXIS 7103

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 26, 1995
• Status: Published

Opinion

In an action, inter alia, for a judgment declaring the rights of the parties under a lease, the defendant appeals from (1) an order of the Supreme Court, Nassau County (Hart, J.), dated December 28, 1993, which denied his motion to amend his answer to include a counterclaim to recover liquidated damages for breach of the lease, and (2) a judgment of the same court (Collins, J.), entered April 28,1995, which, inter alia, is in his favor and against the plaintiff in the principal sum of only $54,000.

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 the plaintiff is awarded one bill of costs.

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with entry of a judgment in the action (see, Matter of Aho, 39 NY2d 241, 248). 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]).

We agree with the Supreme Court’s conclusion that the plaintiff would have been unfairly prejudiced by the counterclaim in the proposed amended answer (see, Pelligrino v New York City Tr. Auth., 177 AD2d 554, 558). The court therefore properly denied the defendant’s motion for leave to amend (see, CPLR 3025 [b]). O’Brien, J. P., Ritter, Copertino and Krausman, JJ., concur.