Preston v. Smith

Judgment unanimously affirmed without costs. Memorandum: A judgment was entered after the entry of the order from which this appeal was taken. "Where a prior order is subsumed within a judgment, the appeal is from the judgment, not the prior order” (Hughes v Nussbaumer, Clarke & Velzy, 140 AD2d 988). Absent prejudice to respondent, this Court may, in its discretion, treat the notice of appeal as one taken from the judgment (see, CPLR 5520 [c]; Hughes v Nussbaumer, Clarke & Velzy, supra). We so exercise our discretion in this case and affirm the judgment for reasons stated in the decision at Supreme Court (Frazee, J.). (Appeal from Judgment of Supreme Court, Monroe County, Frazee, J.—Summary Judgment.) Present—Lawton, J. P., Fallon, Wesley, Callahan and Doerr, JJ.