—Judgment unanimously affirmed with costs. Memorandum: We affirm for reasons stated in the decision at Supreme Court (Kane, J.). We note that the *1005appeal was taken from that part of an order that was subsumed in a subsequent judgment, and thus the appeal is properly taken from the judgment, not the order (see, Hughes v Nusshaumer, Clarke & Velzy, 140 AD2d 988). We exercise our discretion to disregard the misstatement in the notice of appeal, and we treat the appeal as taken from the judgment (see, CPLR 5520 [c]; Hughes v Nusshaumer, Clarke & Velzy, supra). (Appeal from Judgment of Supreme Court, Erie County, Kane, J. — Summary Judgment.) Present — Green, J. P., Pigott, Jr., Balio and Fallon, JJ.