Tornheim v. Kohn

In an action, inter alia, to recover damages for assault and battery, the plaintiff appeals from an order of the Supreme Court, Rockland County (Weiner, J.), entered May 3, 2004, which denied the plaintiffs motion, inter alia, for summary judgment on the issue of liability.

Ordered that the appeal is dismissed, without costs or disbursements.

The appeal from the intermediate order must be dismissed *748because the right of direct appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho, 39 NY2d 241, 248 [1976]). The issues raised on the appeal from the order are brought up for review and are considered in the appeal from the judgment (see CPLR 5501 [a] [1]; Tornheim v Kohn, 31 AD3d 748 [2006] [decided herewith]).

Motion by the respondent, inter alia, to dismiss an appeal from an order of the Supreme Court, Rockland County, entered May 3, 2004, on the ground that the right to direct appeal therefrom terminated with the entry of judgment dated June 17, 2005, in the action. By decision and order on motion of this Court dated October 25, 2005, that branch of the motion which was to dismiss the appeal from the order was referred to the bench hearing this appeal and the appeal from the judgment pending under Appellate Division docket No. 2005-07201 for determination upon the argument or submission thereof.

Upon the papers filed in support of the motion and the papers filed in opposition thereto, and the submission of the appeals, it is

Ordered that the branch of the motion which was to dismiss the appeal from the order is denied as academic in light of the determination of the appeal from the order. Krausman, J.P., Mastro, Spolzino and Covello, JJ., concur.