Zambito v. Catanzaro

In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals, as limited by his brief, from so much of (1) an order of the Supreme Court, Orange County (Owen, J.), dated March 9, 1998, as granted that branch of the defendants’ motion which was for summary judgment dismissing the complaint, and (2) a judgment of the same court (Peter C. Patsalos, J.), dated April 9, 1998, as dismissed the complaint. The notice of appeal from the order is also deemed to be a notice of appeal from the judgment (see, CPLR 5501 [c]). Ordered that the appeal from the order is dismissed; and it is further, Ordered that the judgment is affirmed insofar as appealed from; and it is further, Ordered that the respondents are awarded one bill of costs. 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]). The Supreme Court properly granted that branch of the defendants’ motion which was for summary judgment dismissing the complaint. The defendants established their entitlement to judgment as a matter of law, and the plaintiff failed to demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action (see, GTF Mktg. v Colonial Aluminum Sales, 66 NY2d 965; Cohen v City of New York, 128 AD2d 748). The plaintiffs contentions which are raised for the first time on appeal are not properly before this Court (see, Green Point Sav. Bank v Oppenheim, 217 AD2d 571). S. Miller, J. P., Santucci, Krausman and Florio, JJ., concur.