Opinion
February 20, 1990
Appeal from the Supreme Court, Richmond County (Leone, J.).
Ordered that the appeal from the order is dismissed, without costs or disbursements; and it is further,
Ordered that the judgment is reversed, on the law, without costs or disbursements, the order is vacated and the motion by the plaintiff Marilyn Grimaldi is denied.
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 Supreme Court's determination, we find that there are triable issues of fact which preclude the granting of the motion by the plaintiff Marilyn Grimaldi for partial summary judgment on the issue of liability (see, Barraco v DePew, 33 A.D.2d 816; see also, Kellner v DeBushey Coach, 138 A.D.2d 460; Klein v Klein, 101 A.D.2d 828). Grimaldi's reliance on the defendant's examination before trial is misplaced since the defendant's testimony therein does not disclose conduct on his part which would constitute negligence as a matter of law. Lawrence, J.P., Rubin, Sullivan and Balletta, JJ., concur.