Recinos v Priamo

2012 NY Slip Op 02661 [94 AD3d 848]

April 10, 2012

Appellate Division, Second Department

As corrected through Wednesday, May 23, 2012

Elias Recinos, Appellant, v Anthony Priamo,Respondent.

—[*1]Cannon & Acosta, LLP, Huntington Station, N.Y. (June Redeker and Garren Small ofcounsel), for appellant.

Lewis Johs Avallone Aviles, LLP, Riverhead, N.Y. (Tara M. Higgins of counsel), forrespondent.

In an action to recover damages for personal injuries, the plaintiff appeals from (1) an orderof the Supreme Court, Suffolk County (Pitts, J.), entered January 10, 2011, which granted thedefendant's motion for summary judgment dismissing the complaint, and (2) a judgment of thesame court entered April 11, 2011, which, upon the order, is in favor of the defendant and againsthim dismissing the complaint. The notice of appeal from the order is deemed also to be a noticeof appeal from the judgment (see CPLR 5501 [c]).

Ordered that the appeal from the order is dismissed; and it is further,

Ordered that the judgment is affirmed; and it is further,

Ordered that one bill of costs is awarded to the defendant.

The appeal from the intermediate order must be dismissed because the right of direct appealtherefrom terminated with the entry of judgment in the action (see Matter of Aho, 39NY2d 241, 248 [1976]). The issues raised on the appeal from the order are brought up for reviewand have been considered on the appeal from the judgment (see CPLR 5501 [a] [1]).

The defendant established his prima facie entitlement to judgment as a matter of law bysubmitting proof that the plaintiff's violation of Vehicle and Traffic Law § 1143 by failingto yield the right-of-way was the sole proximate cause of the subject collision (see Vainer v DiSalvo, 79 AD3d1023, 1023-1024 [2010]; Strocchiav City of New York, 70 AD3d 926, 927 [2010]; Sanabria v Paduch, 61 AD3d 839, 839-840 [2009]). In oppositionthereto, the plaintiff failed to raise a triable issue of fact (see CPLR 3212 [b]).

Accordingly, the Supreme Court properly granted the defendant's motion for summaryjudgment dismissing the complaint (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]).Mastro, A.P.J., Hall, Lott and Sgroi, JJ., concur.