Opinion
2002-02427, 2002-03438
Submitted February 5, 2003.
February 24, 2003.
In an action to recover damages for personal injuries, the plaintiff appeals from (1) an order of the Supreme Court, Suffolk County (Floyd, J.), dated February 5, 2002, which granted the separate motions of the defendants for summary judgment dismissing the complaint insofar as asserted against them, and (2) a judgment of the same court, entered April 2, 2002, which, upon the order, dismissed the complaint.
Siben Siben, LLP, Bay Shore, N.Y. (Alan G. Faber of counsel), for appellant.
Epstein, Grammatico, Gann Frankini, Hauppauge, N.Y. (Lillian M. Kennedy of counsel), for respondent Anthony P. Valenti.
Schondebare Brown, LLP, Ronkonkoma, N.Y. (Dennis M. Brown and Amy B. Korcz of counsel), for respondent Laura Gagliardo.
Before: ANITA R. FLORIO, J.P., SONDRA MILLER, WILLIAM D. FRIEDMANN, SANDRA L. TOWNES, WILLIAM F. MASTRO, JJ.
DECISION ORDER
ORDERED that the appeal from the order is dismissed; and it is further,
ORDERED that the judgment is reversed, on the law, the order is vacated, the defendants' separate motions are denied, and the complaint is reinstated; and it is further,
ORDERED that one bill of costs is awarded to the plaintiff.
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 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 improperly granted the defendants' separate motions for summary judgment dismissing the complaint insofar as asserted against them. A triable issue of fact exists as to whether the plaintiff sustained a serious injury as defined by Insurance Law § 5102(d), since the evidence raises an issue as to whether the plaintiff sustained a medically determined injury which left him "totally disabled" for at least 90 days out of the first 180 days immediately following the accident (see Temple v. Doherty, 301 A.D.2d 979 [3d Dept, Jan. 30, 2003]; Monk v. Dupuis, 287 A.D.2d 187).
FLORIO, J.P., S. MILLER, FRIEDMANN, TOWNES and MASTRO, JJ., concur.