Opinion
2001-06600, 2001-07096
Argued September 20, 2002.
October 7, 2002.
In an action for specific performance of an option to purchase real property, the defendants appeal from (1) an order of the Supreme Court, Rockland County (Sherwood, J.), dated June 13, 2001, which granted the plaintiff's motion, in effect, for summary judgment on their complaint, to dismiss the first and second affirmative defenses and counterclaims, and to sever the remaining counterclaims, and denied their cross motion for summary judgment on their first and second counterclaims to rescind two option agreements dated May 21, 1996, and November 26, 1996, respectively, and (2) a judgment of the same court, dated July 23, 2001, entered upon the order, which is in favor of the plaintiff and against them.
DaSilva, Hilowitz McEvily, LLP, Garden City, N.Y. (Willard H. DaSilva of counsel), for appellants.
Donald Tirschwell, New City, N.Y., for respondent.
Before: CORNELIUS J. O'BRIEN, J.P., GABRIEL M. KRAUSMAN, SANDRA L. TOWNES, BARRY A. COZIER, JJ.
DECISION ORDER
ORDERED that the appeal from the order is dismissed; and it is further,
ORDERED that the judgment is reversed, the motion is denied, and the order is modified accordingly; and it is further,
ORDERED that one bill of costs is awarded to the appellants.
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 issues of fact requiring the denial of summary judgment. Accordingly, the plaintiff's motion and the defendants' cross motion must be denied.
O'BRIEN, J.P., KRAUSMAN, TOWNES and COZIER, JJ., concur.