           SUPREME COURT OF THE STATE OF NEW YORK
             Appellate Division, Fourth Judicial Department

433
CA 16-01577
PRESENT: WHALEN, P.J., LINDLEY, NEMOYER, CURRAN, AND TROUTMAN, JJ.


DYLAN DEUSER, PLAINTIFF-RESPONDENT,

                      V                           MEMORANDUM AND ORDER

PRECISION CONSTRUCTION & DEVELOPMENT, INC.,
DEFENDANT-APPELLANT,
ET AL., DEFENDANTS.


KENNEY SHELTON LIPTAK NOWAK LLP, BUFFALO (MELISSA A. FOTI OF COUNSEL),
FOR DEFENDANT-APPELLANT.

MARCUS & CINELLI, LLP, WILLIAMSVILLE (BRIAN L. CINELLI OF COUNSEL),
FOR PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (John L.
Michalski, A.J.), entered April 13, 2016. The order, insofar as
appealed from, denied the motion of defendant Precision Construction &
Development, Inc. for summary judgment dismissing the complaint
against it.

     It is hereby ORDERED that said appeal is unanimously dismissed
without costs.

     Memorandum: Precision Construction & Development, Inc.
(defendant) appeals from an order that, inter alia, denied its motion
for summary judgment dismissing the complaint. “The right to appeal
from an intermediate order terminates with the entry of a final
judgment” (City of Syracuse v COR Dev. Co., LLC, 147 AD3d 1510, 1510
[internal quotation marks omitted]; see Matter of Aho, 39 NY2d 241,
248; see generally CPLR 5501 [a] [1]). Because a final judgment in
this action was entered on January 17, 2017, defendant’s appeal from
the intermediate order must be dismissed. Defendant may raise its
contentions in an appeal from the final judgment (see generally Chase
Manhattan Bank, N.A. v Roberts & Roberts, 63 AD2d 566, 567).




Entered:    April 28, 2017                      Frances E. Cafarell
                                                Clerk of the Court
