Lampel v. Sergel

Sep 23, 2002
Versions:297 A.D.2d 709
747 N.Y.S.2d 395
747 N.Y.2d 395
2002 N.Y. App. Div. LEXIS 8665

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 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]).

Upon the prima facie showing by the defendant Priscilla Herdman of her entitlement to judgment as a matter of law, the plaintiff was required to submit evidence in admissible form sufficient to demonstrate the existence of a triable issue of fact (see CPLR 3212 [b]; Alvarez v Prospect Hosp., 68 NY2d 320, 324; Zuckerman v City of New York, 49 NY2d 557, 562). Since the plaintiffs submission in opposition to the motion was not in admissible form and his attorney’s affirmation was of no evidentiary value (see Zuckerman v City of New York, supra), he failed to sustain his burden. Accordingly, the Supreme Court properly granted the respondent’s motion for summary judgment dismissing the complaint insofar as asserted against her.

The plaintiffs remaining contentions are without merit. Feuerstein, J.P., Krausman, Luciano, Townes and Cozier, JJ., concur.