Dubray v. Pratt , 724 N.Y.S.2d 664 ( 2001 )

—Lahtinen, J.

Appeal from an order of the Supreme Court (Canfield, J.), entered October 31, 2000 in Rensselaer County, which denied defendant’s motion for summary judgment dismissing the complaint.

In the early evening of April 7, 1997, plaintiff Tia K. Dubray (hereinafter plaintiff) was walking with two friends on the sidewalk bordering the southbound lane of Pawling Avenue in the City of Troy, Rensselaer County. Plaintiff and her companions left the sidewalk and began to cross the street in an easterly direction. A motorist in the southbound lane waved at plaintiff and her companions and used his horn in an attempt to warn them about defendant’s vehicle, which was proceeding in the northbound lane of Pawling Avenue. Although her companions stopped, plaintiff ran into the northbound lane and came into contact with defendant’s vehicle, sustaining personal injuries.

Plaintiff and her mother, derivatively, commenced this personal injury action claiming that defendant was inattentive and should have noticed plaintiff in the street and avoided the collision. After discovery, defendant moved for summary judgment. Supreme Court denied defendant’s motion, finding that eyewitness affidavits presented by plaintiffs in opposition to the motion raised questions of fact regarding whether plaintiff was visible to defendant prior to the collision for a long enough period of time for defendant to have reacted and avoided the collision. Defendant appeals.

We have been advised that since the entry of the order from which defendant now appeals, and during the pendency of this appeal, a jury trial was held in Supreme Court which resulted in the entry of a final judgment dismissing the complaint upon a verdict in favor of defendant. As the right to take an immediate appeal from an intermediate order terminates with the entry of a final judgment in the action, defendant’s appeal must be dismissed (see, Norwest Mtge. v Clifford, 271 AD2d 721; Rivera v Majuk, 256 AD2d 910, 911; Pixel Intl. Network v State of New York, 255 AD2d 666).

Cardona, P. J., Crew III, Peters and Spain, JJ., concur. Ordered that the appeal is dismissed, without costs.