Opinion
December 11, 1995
Appeal from the Supreme Court, Rockland County (Stolarik, J., Scarpino, J.).
Ordered that the appeal from the order dated April 7, 1994, is dismissed, as no appeal lies from an order denying reargument; and it is further,
Ordered that the appeal from the order dated June 25, 1993, in Action No. 1 is dismissed; and it is further,
Ordered that the judgment in Action No. 1 is reversed, the order dated June 25, 1993, in Action No. 1 is vacated, the motion by CL Golf, Inc., for summary judgment is denied, and Action No. 1 is remitted to the Supreme Court, Rockland County, for further proceedings consistent herewith; and it is further,
Ordered that the order dated June 25, 1993, in Action No. 2 is modified by deleting the provision thereof which dismissed the complaint; as so modified, the order is affirmed, and Action No. 2 is remitted to the Supreme Court, Rockland County, for further proceedings consistent herewith; and it is further,
Ordered that the appellants are awarded one bill of costs.
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 appeal from the order are brought up for review and have been considered on the appeal from the judgment (see, CPLR 5501 [a] [1]).
There are triable issues of fact in connection with CL Golf, Inc.'s, motion in Action No. 1. Therefore, the court improperly granted summary judgment in Action No. 1 (see, Andre v Pomeroy, 35 N.Y.2d 361; Nash v Assessor of Town of Southampton, 168 A.D.2d 102) and in light of this determination the Supreme Court also improperly dismissed the complaint in Action No. 2, since the appellants may prevail in Action No. 1, and hold a seemingly valid purchase money mortgage on the property in question. Bracken, J.P., Sullivan, Rosenblatt and Hart, JJ., concur.