GONZALEZ v. TOWN OF MT PLEASANT (1999)

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from (1) an order of the Supreme Court, Westchester County (Cowhey, J.), entered October 22, 1998, which granted the defendant's motion for summary judgment dismissing the complaint, and (2) a judgment of the same court, entered November 18, 1998, upon the order, which dismissed 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 injured plaintiff, Maria Gonzalez, fell on a patch of ice in the driveway of a converted private residence owned by the defendant, Town of Mt. Pleasant, and used as a community center.   The Town moved for summary judgment dismissing the complaint on the grounds, inter alia, that it had no written notice of the icy condition (see, Englehardt v. Town of Hempstead, 141 A.D.2d 601, 529 N.Y.S.2d 523), and owed no duty to erect lighting in the driveway of the community center.   The Supreme Court granted the motion and we affirm.

Whether the Town used the property where the injured plaintiff fell in its proprietary or governmental function, it met its burden of establishing that her injuries were not the result of a breach of any duty it owed to her with respect to the illumination of the driveway (see, Mastro v. Maiorino, 174 A.D.2d 654, 571 N.Y.S.2d 515;  Bauer v. Town of Hempstead, 143 A.D.2d 793, 533 N.Y.S.2d 342;  Ordonez v. Long Is. R. R., 112 A.D.2d 923, 492 N.Y.S.2d 442).   Since the injured plaintiff failed to raise an issue of fact with respect to the defendant's alleged liability, the Supreme Court properly granted the defendant's motion for summary judgment.

The plaintiffs' remaining contentions are without merit.

MEMORANDUM BY THE COURT.