Opinion
September 24, 2002.
In an action, inter alia, to recover damages for wrongful death, the plaintiff appeals from (1) an order of the Supreme Court, Dutchess County (Pagones, J.), dated March 5, 2002, which granted the motion of the defendant Priscilla Herdman for summary judgment dismissing the complaint insofar as asserted against her, and (2) a judgment of the same court, entered March 15, 2002, which dismissed the complaint insofar as asserted against that defendant.
Ordered that the appeal from the order dated March 5, 2002, 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 respondent.
The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho, 39 N.Y.2d 241, 248). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501 [a] [1]).
Upon the prima facie showing by the defendant Priscilla Herdman of her entitlement to judgment as a matter of law, the plaintiff was required to submit evidence in admissible form sufficient to demonstrate the existence of a triable issue of fact (see CPLR 3212 [b]; Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324; Zuckerman v. City of New York, 49 N.Y.2d 557, 562). Since the plaintiff's submission in opposition to the motion was not in admissible form and his attorney's affirmation was of no evidentiary value (see Zuckerman v. City of New York, supra), he failed to sustain his burden. Accordingly, the Supreme Court properly granted the respondent's motion for summary judgment dismissing the complaint insofar as asserted against her.