BOONE v. HOPKINS (2001)

Although the order appealed from was subsumed within the final judgment (CPLR 5501[a] ), in the exercise of our discretion we treat the appeal as taken from the judgment (see, CPLR 5520[c];  Chin v. Kaplan, 280 A.D.2d 892, 720 N.Y.S.2d 862).   We conclude that Supreme Court properly granted plaintiff's motion for a directed verdict on the issue of proximate cause at the close of proof.   Both plaintiff's medical expert and defendants' medical expert concluded that plaintiff sustained a shoulder injury as a result of the automobile accident at issue, and thus there was no rational process by which a jury could have found that there was no proximate cause (see, Clemente v. Impastato, 274 A.D.2d 771, 773, 711 N.Y.S.2d 71;  see also, Sheehan v. City of New York, 40 N.Y.2d 496, 502, 387 N.Y.S.2d 92, 354 N.E.2d 832;  Miecznikowski v. Robida, 278 A.D.2d 793, 723 N.Y.S.2d 580, lv. denied 96 N.Y.2d 709, 725 N.Y.S.2d 639, 749 N.E.2d 208;  Gusek v. Compass Transp. Corp., 266 A.D.2d 923, 697 N.Y.S.2d 886;  cf., Cross v. Finch Pruyn & Co., 281 A.D.2d 836, 722 N.Y.S.2d 312).

Judgment unanimously affirmed without costs.

MEMORANDUM: