ENGELHARDT v. DOMINGUEZ (2002)

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from (1) an order of the Supreme Court, Nassau County (Raab, J.), dated July 23, 2001, which granted the defendants' separate motions for summary judgment dismissing the complaint insofar as asserted against them on the ground that the injured plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d), and (2) a judgment of the same court, entered August 22, 2001, which, upon the order, dismissed the complaint.   The notice of appeal from the order dated July 23, 2001, is deemed to be a notice of appeal from the judgment (see CPLR 5501[c] ).

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 motions are denied, and the complaint is reinstated;  and it is further,

ORDERED that one bill of costs is awarded to the appellants.

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] ).

In support of their motions for summary judgment dismissing the complaint, the defendants established their prima facie entitlement to judgment as a matter of law dismissing the complaint on the ground that the injured plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).  However, the plaintiffs' opposition papers were sufficient to raise a triable issue of fact (see Toure v. Avis Rent A Car Systems, 98 N.Y.2d 345, 746 N.Y.S.2d 865, 774 N.E.2d 1197).