Lee v. Noce , 614 N.Y.S.2d 242 ( 1994 )

—In an action, inter alia, to recover the proceeds of a promissory note, the defendants appeal, from (1) an order of the Supreme Court, Richmond County (Amann, J.) dated October 16, 1992, which granted the plaintiffs’ motion for summary judgment and (2) a judgment of the same court dated October 22, 1992, which, inter alia, is in favor of the plaintiffs and against the defendants in the principal sum of $275,000, plus interest.

Ordered that the appeal from the order is dismissed; and it is further,

Ordered that the judgment is reversed, the order dated October 16, 1992, is vacated, and the plaintiffs’ motion for summary judgment is denied; and it is further,

Ordered that the appellants are 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 NY2d 241, 248). The issues raised on appeal from the order are brought up for review and have been considered on the appeal from the judgment (CPLR 5501 [a] [1]).

The defendant John Noce executed a promissory note to plaintiff R. Randy Lee. Lee alleged that Noce defaulted on the note. The court erred in granting summary judgment to the plaintiffs as a question of fact existed, inter alia, as to whether Noce was fraudently induced to execute the promissory note. Thompson, J. P., Rosenblatt, Pizzuto and Florio, JJ., concur.