Pixel International Network, Inc. v. State , 678 N.Y.S.2d 922 ( 1998 )

Crew III, J.

Appeal from an order of the Supreme Court (Teresi, J.), entered July 29, 1997 in Albany County, which, inter alia, denied defendant State of New York’s motion for summary judgment dismissing the complaint against it.

During the pendency of this appeal, the underlying action was tried before a Referee who issued a report in favor of plaintiff. Thereafter, by order entered July 8, 1998, Supreme Court confirmed the Referee’s report and defendant State of New York subsequently appealed. Notwithstanding these events, counsel for the State asserts that the instant appeal, wherein the State seeks to challenge Supreme Court’s denial of its prior motion for summary judgment dismissing the complaint against it, remains viable. We cannot agree. The right to take a direct appeal from an intermediate order terminates with the entry of a final judgment in the action (see, Lauer v City of New York, 240 AD2d 543, lv denied 91 NY2d 807; Jarvis v Dianto, 210 AD2d 380, 381, lv denied 85 NY2d 811; Davies, Stecich and Gold, New York Civil Appellate Practice § 4.4, at 52). Accordingly, the instant appeal is dismissed.

Mikoll, J. P., Mercure, Yesawich Jr. and Peters, JJ., concur. Ordered that the appeal is dismissed, without costs.