Reynolds v. Eligson

—In an action to recover damages for personal injuries, the plaintiff appeals (1) from an order of the Supreme Court, Westchester County (Coppola, J.), dated April 12, 1999, which granted the separate motions of the defendant Maria Foley and the defendants Scott Way and Eastern Water Development Company for summary judgment dismissing the complaint insofar as asserted against them based upon the plaintiffs failure to sustain a serious injury within the meaning of Insurance Law § 5102 (d), and (2), as limited by his brief, from so much of a judgment of the same court entered May 28, 1999, as dismissed the complaint insofar as asserted against the defendants Scott Way, Eastern Water Development Company, and Maria Foley.

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 the judgment in this 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 affirmed report of Dr. Michael Rosen which the respondents submitted in support of their separate motions for summary judgment established a prima facie case that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) (see, Gaddy v Eyler, 79 NY2d 955). The medical evidence submitted by the plaintiff in opposition to the motion failed to raise a triable issue of fact (see, CPLR 3212 [b]; Mobley v Riportella, 241 AD2d 443). Mangano, P. J., Santucci, Krausman, Florio and Schmidt, JJ., concur.