RENDON v. WHITE CASTLE SYSTEM INC (2025)

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Leon Ruchelsman, J.), dated July 26, 2021.  The order denied the defendants' motion pursuant to CPLR 4404(a) to set aside a jury verdict in favor of the plaintiff on the issue of liability and for judgment as a matter of law dismissing the complaint or, in the alternative, to set aside the jury verdict as contrary to the weight of the evidence or in the interest of justice and for a new trial on the issue of liability.

Motion by the plaintiff, inter alia, to dismiss the appeal from the order on the ground that the right of direct appeal from the order terminated upon entry of a judgment dated October 14, 2021, or, in the alternative, to dismiss the appeal on the ground that the defendants have filed an improper record or, in the alternative, to strike certain portions of the defendants' brief and record, and to limit the scope of the appeal from the judgment to the issue of damages only.  By decision and order on motion of this Court dated June 15, 2022, those branches of the motion were held in abeyance and referred to the panel of Justices hearing the appeal for determination upon the argument or submission thereof.

Upon the papers filed in support of the motion and the papers filed in opposition thereto, and upon the argument of the appeal, it is

ORDERED that the branch of the motion which is to dismiss the appeal from the order on the ground that the right of direct appeal from the order terminated upon entry of the judgment is granted;  and it is further,

ORDERED that those branches of the motion which are, in the alternative, to dismiss the appeal on the ground that the defendants have filed an improper record or, in the alternative, to strike certain portions of the defendants' brief and record, and to limit the scope of the appeal from the judgment to the issue of damages only are denied;  and it is further,

ORDERED that the appeal is dismissed, with costs.

The appeal from the order must be dismissed because the right of direct appeal therefrom terminated with 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).  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];  Matter of Aho, 39 N.Y.2d at 248, 383 N.Y.S.2d 285, 347 N.E.2d 647;  Rendon v. White Castle Sys., Inc., ––– A.D.3d ––––, ––– N.Y.S.3d ––––, 2025 WL 2609396 [Appellate Division Docket No. 2021–08041;  decided herewith]).  The plaintiff's remaining contentions are without merit.

CHAMBERS, J.P., CHRISTOPHER, LOVE and HOM, JJ., concur.