Opinion
July 14, 1995
Appeal from the Supreme Court, Monroe County, Frazee, J.
Present — Lawton, J.P., Fallon, Wesley, Callahan and Doerr, JJ.
Judgment unanimously affirmed without costs. Memorandum: A judgment was entered after the entry of the order from which this appeal was taken. "Where a prior order is subsumed within a judgment, the appeal is from the judgment, not the prior order" ( Hughes v. Nussbaumer, Clarke Velzy, 140 A.D.2d 988). Absent prejudice to respondent, this Court may, in its discretion, treat the notice of appeal as one taken from the judgment ( see, CPLR 5520 [c]; Hughes v. Nussbaumer, Clarke Velzy, supra). We so exercise our discretion in this case and affirm the judgment for reasons stated in the decision at Supreme Court (Frazee, J.).