Craft v. Minicucci

• Decision Date: 23 May 1986
• Citation: 502 N.Y.S.2d 861,120 A.D.2d 990
• Parties: James M. CRAFT, Appellant, v. John R. MINICUCCI, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 861

502 N.Y.S.2d 861

120 A.D.2d 990

James M. CRAFT, Appellant, v. John R. MINICUCCI, Respondent.

Supreme Court, Appellate Division, Fourth Department.

May 23, 1986.

Before DILLON, P.J., and DOERR, PINE, LAWTON and SCHNEPP, JJ.

MEMORANDUM:

Plaintiff appeals from an order granting defendant's motion for partial summary judgment dismissing certain causes of action. No judgment has been entered. Defendant moves to dismiss the appeal as premature, contending that no appeal lies from an order granting summary judgment; that defendant can appeal only from a judgment entered upon the order. We disagree.

An appeal may be taken to this Court from an order which either "involves some part of the merits" or "affects a substantial right" (CPLR 5701[a][2][iv], [v] ). The appeal in this case has been taken from such an order.

Where a judgment has been entered upon an order granting summary judgment, a party may not appeal from the order because the order is subsumed in the judgment (Men's World Outlet v. Estate of Steinberg, 101 A.D.2d 854, 476 N.Y.S.2d 171; Chase Manhattan Bank, N.A. v. Roberts & Roberts, 63 A.D.2d 566, 404 N.Y.S.2d 608; Coleman v. Coleman, 61 A.D.2d 955, 403 N.Y.S.2d 47). Where no judgment has been entered, however, the adverse party may appeal from the order (10 Carmody Wait 2d, Cyclopedia of New York Practice § 70:36), and this has long been the practice (see, e.g., Appel v. Root, 18 A.D.2d 686, 236 N.Y.S.2d 5, affd. 13 N.Y.2d 748, 241 N.Y.S.2d 870, 191 N.E.2d 920; Worth v. Speenburgh, 322 N.Y.S.2d 319, n.o.r. [3d Dept] ).

Motion to dismiss appeal as premature denied.