Grimaldi v. Fleishaker

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 (CPLR 5501 [a] [1]). Contrary to the Supreme Court’s determination, we find that there are triable issues of fact which preclude the granting of the motion by the plaintiff Marilyn Grimaldi for partial summary judgment on the issue of liability (see, Barraco v DePew, 33 AD2d 816; see also, Kellner v DeBushey Coach, 138 AD2d 460; Klein v Klein, 101 AD2d 828). Grimaldi’s reliance on the defendant’s examination before trial is misplaced since the defendant’s testimony therein does not disclose conduct on his part which would constitute negligence as a matter of law. Lawrence, J. P., Rubin, Sullivan and Balletta, JJ., concur.