Boone v. Hopkins

—Judgment unanimously affirmed without costs. Memorandum: Although the order appealed from was subsumed within the final judgment (CPLR 5501 [a]), in the exercise of our discretion we treat the appeal as taken from the judgment (see, CPLR 5520 [c]; Chin v Kaplan, 280 AD2d 892). We conclude that Supreme Court properly granted plaintiff’s motion for a directed verdict on the issue of proximate cause at the close of proof. Both plaintiff’s medical expert and defendants’ medical expert concluded that plaintiff sustained a shoulder injury as a result of the automobile accident at issue, and thus there was no rational process by which a jury could have found that there was no proximate cause (see, Clemente v Impastato, 274 AJD2d 771, 773; see also, Sheehan v City of New York, 40 NY2d 496, 502; Miecznikowski v Robida, 278 AD2d 793, Iv denied 96 NY2d 709; Gusek v Compass Transp. Corp., 266 AD2d 923; cf., Cross v Finch Pruyn & Co., 281 AD2d 836). (Appeal from Judgment of Supreme Court, Erie County, Joslin, J. — Negligence.) Present — Pigott, Jr., P. J., Green, Wisner, Kehoe and Burns, JJ.