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Progressive Northeastern Insurance Co. v. North State Autobahn

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


March 2, 2010

PROGRESSIVE NORTHEASTERN INSURANCE COMPANY, RESPONDENT,
v.
NORTH STATE AUTOBAHN, INC., D/B/A NORTH STATE CUSTOM AUTO, ET AL., APPELLANTS.

In an action, inter alia, to recover damages for fraud, the defendants appeal from an order of the Supreme Court, Westchester County (Loehr, J.), entered April 18, 2008, which denied their motion for summary judgment dismissing the complaint or, in the alternative, to direct that this action be tried jointly with an action entitled North State Autobahn v Progressive Insurance Group, pending in the Supreme Court, Westchester County, under Index No. 02761/07.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

STEVEN W. FISHER, J. P., ANITA R. FLORIO, ARIEL E. BELEN, LEONARD B. AUSTIN, JJ.

(Index No. 8750/05)

DECISION & ORDER

ORDERED that the appeal is dismissed, with 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 NY2d 241, 248). The issues raised on the appeal from the order are brought up for review and have been considered on appeal from the judgment (see CPLR 5501[a][1]; Progressive Northeastern Insurance Company v North State Autobahn, Inc., d/b/a North State Custom Auto, _____ AD3d _____, [Appellate Division Docket No. 2009-04958, decided herewith]).

FISHER, J. P., FLORIO, BELEN and AUSTIN, JJ., concur.

20100302

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