Browne v. Stanley

In an action for contribution, the defendants appeal from (1) an order of the Supreme Court, Westchester County (Lefkowitz, J.), entered November 9, 1999, which granted the plaintiff’s motion for summary judgment, and (2) a judgment of the same court, entered November 23, 1999, which is in favor of the plaintiff and against each defendant in the principal sum of $40,083.51. Ordered that the appeal from the order is dismissed; and it is further, Ordered that the judgment is affirmed; and it is further, Ordered that the plaintiff is 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 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 the plaintiff’s motion for summary judgment. The parties do not dispute that the plaintiff established her entitlement to judgment as a matter of law (see, CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557). Moreover, the affidavit of the defendant Harold Stanley submitted in opposition to the motion contained [268] unsubstantiated and conclusory allegations, and failed to raise a triable issue of fact (see, Zuckerman v. City of New York, supra, at 562; Tako Holdings v Tillman, 272 AD2d 394; Capital Inv. Co. v Cuffee, 256 AD2d 295). The defendants’ claim with respect to the calculation of damages is unpreserved for appellate review, since they failed to raise this issue before the trial court and we decline to address it in the exercise of our interest of justice jurisdiction. S. Miller, J. P., Friedmann, Krausman and Florio, JJ., concur.