Craft v. Minicucci

— Motion to dismiss appeal as premature denied. Memorandum: Plaintiff appeals from an order granting defendant’s motion for partial summary judgment dismissing certain causes of action. No judgment has been entered. Defendant moves to dismiss the appeal as premature, contending that no appeal lies from an order granting summary judgment; that plaintiff can appeal only from a judgment entered upon the order. We disagree. An appeal may be taken to this court from an order which either "involves some part of the merits” or "affects a substantial right” (CPLR 5701 [a] [2] [iv], [v]). The appeal in this case has been taken from such an order. . Where a judgment has been entered upon an order granting summary judgment, a party may not appeal from the order because the order is subsumed in the judgment (Men’s World Outlet v Estate of Steinberg, 101 AD2d 854; Chase Manhattan Bank v Roberts & Roberts, 63 AD2d 566; Coleman v Coleman, 61 AD2d 955). Where no judgment has been entered, however, the adverse party may appeal from the order (10 Carmody 991 Wait 2d, NY Prac § 70:36), and this has long been the practice (see, e.g., Appel v Root, 18 AD2d 686, affd 13 NY2d 748; Worth v Speenburgh, 322 NYS2d 319 [3d Dept]). Present — Dillon, P. J., Doerr, Pine, Lawton and Schnepp, JJ.