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Kehoe v. Nationwide Mutual Fire Company11/4/2002
ie entitlement to summary judgment by demonstrating that the subject claim was excluded under the terms of the policy (see generally Zuckerman v City of New York, 49 NY2d 557, 562). The plaintiffs failed to establish their prima facie entitlement to summary judgment in support of their motion, and failed to raise a triable issue of fact in opposition to the cross motion. Therefore, the Supreme Court erred in granting the plaintiffs' motion and in denying Nationwide's cross motion for summary judgment.
In light of our determination, we need not reach Nationwide's remaining contention.
SMITH, J.P., SCHMIDT, ADAMS and COZIER, JJ., concur.
Motion by the respondents on appeals from an order of the Supreme Court, Suffolk County, dated January 8, 2002, and a judgment of the same court, entered July 15, 2002, to dismiss the appeal from the order on the ground that the right of direct appeal therefrom terminated with the entry of (*4)judgment in the action. By decision and order dated October 7, 2002, this court held the motion in abeyance, and referred it to the Justices hearing the appeals for determination upon the argument or submission of the appeals.
Upon the papers filed in support of the motion, the papers filed in opposition thereto, and upon the argument of the appeal, it is
ORDERED that the motion is denied as academic (see Kehoe v Nationwide Mutual Fire Company, AD2d [decided herewith]).
SMITH, J.P., SCHMIDT, ADAMS and COZIER, JJ., concur.
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