Opinion
2001-05435, 2001-05436
Argued May 24, 2002.
July 8, 2002.
In a claim, inter alia, to recover damages for loss of property, the claimant appeals (1), as limited by his brief, from so much of an order of the Court of Claims (Ruderman, J.), dated April 19, 2001, as granted the defendant's motion to dismiss the claim, and (2) a judgment of the same court, dated May 4, 2001, which dismissed the claim.
Marino Weiss, P.C., White Plains, N.Y. (James M. Marino of counsel), for appellant.
Eliot Spitzer, Attorney-General, New York, N.Y. (Peter G. Crary and Victor Paladino of counsel), for respondent.
Before: SANDRA J. FEUERSTEIN, J.P., CORNELIUS J. O'BRIEN, SANDRA L. TOWNES, BARRY A. COZIER, JJ.
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 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 claim (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]).
The Supreme Court properly dismissed the claim based upon bailment as the evidence at trial demonstrated that the defendant did not act in a grossly negligent manner with regard to the claimant's personal property (see Voorhis v. Consolidated Rail Corp., 60 N.Y.2d 878; Roth v. Black Star Pub. Co., 239 A.D.2d 484; J.W. Mays, Inc. v. Hertz Corp., 15 A.D.2d 105).
We further find that the claimant failed to establish entitlement to recovery on his theories of negligent and intentional infliction of emotional distress (see Johnson v. State of New York, 37 N.Y.2d 378; Ferrara v. Bernstein, 179 A.D.2d 79, affd 81 N.Y.2d 895).
FEUERSTEIN, J.P., O'BRIEN, TOWNES and COZIER, JJ., concur.