Berry v. Aquila Realty Co.

In an action to recover damages for personal injuries, the plaintiff appeals from (1) an order of the Supreme Court, Westchester County (Cowhey, J.), dated May 21, 2002, which, in effect, granted the motion of the defendants AF & F Community Builders, Inc., and James Fendt, sued herein as Fendt James, to vacate their default in appearing at a certification conference and to reinstate their answer and cross claims, and (2) a judgment of the same court (Nicolai, J.), dated January 10, 2003, which, upon an order of the same court dated December 17, 2002, granting the motion of the defendants AF & F Community Builders, Inc., and James Fendt, sued herein as Fendt James, for summary judgment dismissing the complaint insofar as asserted against them, dismissed the complaint insofar as asserted against those defendants. Ordered that the appeal from the order dated May 21, 2002, 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 respondents. 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 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 defendants AF & F Community Builders, Inc., and James Fendt, sued herein as Fendt James, demonstrated both a reasonable excuse for their default and a meritorious defense to the action (see Almonte v Latortue, 293 AD2d 431 [2002]). Ac [564] cordingly, the Supreme Court providently exercised its discretion in granting the motion to vacate their default in appearing at a certification conference and to reinstate their answer and cross claims. The plaintiff’s remaining contentions are without merit. Prudenti, P.J., H. Miller, Schmidt and Cozier, JJ., concur.