PRODUCE FARMS AND SALES v. COUNTY OF ORANGE (2000)

In an action to recover damages for injury to personal property, the plaintiffs appeal from (1) an order of the Supreme Court, Orange County (Peter C. Patsalos, J.), dated May 17, 1999, which granted the defendant's motion for summary judgment dismissing the complaint, and (2) a judgment of the same court, dated June 22, 1999, which is in favor of the defendant and against them dismissing the complaint.

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 the respondent is awarded one bill of costs.

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, 383 N.Y.S.2d 285, 347 N.E.2d 647).   The issues raised on 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 plaintiffs commenced this action against the defendant, County of Orange, to recover damages, inter alia, for loss of crops allegedly due to flooding caused or exacerbated by the negligent construction and maintenance of a culvert pipe running underneath a county highway near their property.   After issue was joined and various disclosure completed, the Supreme Court granted the defendant's motion for summary judgment dismissing the complaint.   We affirm.

In opposition to the defendant's prima facie showing of entitlement to judgment as a matter of law, the plaintiffs failed to raise a triable issue of fact that a proximate cause of their alleged damages was the negligent installation and/or maintenance of the culvert pipe at issue (see, Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718).   Rather, the culvert pipe adequately served the function for which it was designed and installed.   Accordingly, the Supreme Court properly granted the defendant summary judgment dismissing the complaint.

The plaintiffs' remaining contentions are without merit.

MEMORANDUM BY THE COURT.