AYERS v. WOOTEN (2005)

Supreme Court, Appellate Division, Second Department, New York.

Colleen R. AYERS, respondent, v. Tina WOOTEN, etc., et al., appellants.

Decided: December 27, 2005

ROBERT W. SCHMIDT, J.P., SONDRA MILLER, WILLIAM F. MASTRO, and REINALDO E. RIVERA, JJ. Andrew F. Plasse, New York, N.Y., for appellants. Farrell Fritz, P.C., Uniondale, N.Y. (John P. McEntee, David A. Scheffel, and Meredith W. German of counsel), for respondents.

In an action to recover damages pursuant to Executive Law § 632-a, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Dunne, J.), dated June 27, 2003, as denied their motion for summary judgment dismissing the complaint.

ORDERED that the appeal is dismissed, without costs or disbursements.

The defendants' appeal is from an order dated June 27, 2003, which, inter alia, denied their motion for summary judgment dismissing the complaint.   Subsequent to the entry of this order, the litigation continued and resulted in a judgment in the plaintiff's favor in the principal sum of $250,000;  this judgment was entered June 24, 2004.   The appeal from the order dated June 27, 2003, must be dismissed because the right of direct appeal therefrom terminated upon the entry of the judgment in the action (see Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647).   We note that the defendants' appeal from the judgment was never perfected and was dismissed for failure to prosecute in April 2005 (see 22 NYCRR 670.8).