Opinion
January 16, 1990
Appeal from the Supreme Court, Putnam County (Dickinson, J.).
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 the defendants 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 (CPLR 5501 [a] [1]).
Contrary to the plaintiff's contention, the Supreme Court acted properly in granting the defendants' motion for summary judgment dismissing the complaint. The parties' moving papers, including the documentary evidence submitted therewith, clearly establish that the defendants were not legally bound by the covenant not to compete which the plaintiff seeks to enforce. Accordingly, in view of the absence of triable issues of fact, the defendants were properly awarded summary judgment dismissing the complaint. Similarly, that branch of the plaintiff's cross motion which was for leave to renew its motion for a preliminary injunction was properly denied since the plaintiff failed to establish a likelihood of success on the merits (see, McLaughlin, Piven, Vogel v. Nolan Co., 114 A.D.2d 165, 172). In any event, we note that whether the plaintiff is entitled to a preliminary injunction is academic since the three-year period governing the covenant not to compete has expired.
Moreover, the plaintiff was properly denied leave to serve an amended complaint since the proposed amended complaint was devoid of merit (see, Matter of Consolidated Edison Co. [Neptune Assocs.], 143 A.D.2d 1012). Mollen, P.J., Brown, Eiber and Rosenblatt, JJ., concur.