Utco v. Cristo

—Judgment unanimously affirmed with costs. Memorandum: Because the directives of the "Order and Judgment” appealed from were subsumed in the "Final Judgment”, from which no appeal was taken, we exercise our discretion to treat the notice of appeal as one taken from the "Final Judgment”, rather than the prior order (see, CPLR 5520 [c]; Hughes v Nussbaumer, Clarke & Velzy, 140 AD2d 988).

The testimony of plaintiff’s general partner and of the President of M.A. Luscher, Inc., as supported by a bill of sale and attached schedule of equipment, was sufficient to establish that plaintiff was the owner of the equipment at the time defendant converted that equipment to his own use. There is no merit to defendant’s contention that evidence of value was legally insufficient or contrary to the weight of evidence. Likewise without merit is defendant’s contention that improper comments by plaintiff’s counsel were so egregious that a mistrial was required. Thus, we affirm the judgment awarding plaintiff damages in the sum of $40,000 for conversion. (Appeal from Judgment of Supreme Court, Monroe County, Rosenbloom, J. — Breach of Contract.) Present — Denman, P. J., Green, Balio, Doerr and Boehm, JJ.