Cohen v. National Grid USA — 89 A.D.3d 1051

Majority

p. 1051

Jason Cohen et al., Respondents, v National Grid USA et al., Appellants.

[933 NYS2d 596]

The appeals from the order and the amended order must be dismissed because the right of direct appeal therefrom terminated with the entry of the amended judgment in the action (see Matter of Aho, 39 NY2d 241 , 248 [1976]). The issues raised on the appeal from the order and the amended order are brought up for review and have been considered on the appeal from the amended judgment (see CPLR 5501 [a] [1]).

The plaintiffs failed to establish their entitlement to judgment as a matter of law on the first and second causes of action, inter alia, to recover damages for breach of contract based on the defendants’ failure to provide them with severance pay under a certain severance plan. The plaintiffs did not tender sufficient evidence demonstrating that the defendants had a regular practice of providing severance payments under the

p. 1052

subject severance plan and that the plaintiffs had knowledge of such practice and relied on it in accepting or continuing their employment (see Gallagher v Ashland Oil, 183 AD2d 1033 , 1034 [1992]; Smith v New York State Elec. & Gas Corp., 155 AD2d 850 [1989]; see also Bailey v New York Westchester Sq. Med. Ctr., 38 AD3d 119 , 125 [2007]; Skarren v Household Fin. Corp., 296 AD2d 488 , 490 [2002]; Hirschfeld v Institutional Inv., 260 AD2d 171 , 172 [1999]). Since the plaintiffs failed to meet their prima facie burden in connection with their motion for summary judgment, it is unnecessary to consider whether the papers submitted by the defendants in opposition were sufficient to raise a triable issue of fact (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 , 853 [1985]).

In light of our determination, we do not reach the parties’ remaining contentions. Rivera, J.E, Angiolillo, Belen and Roman, JJ., concur.

Cases cited

In re Aho 39 NY2d 241 N.Y. 1976-04-06 at 248 p. 1051
Gallagher v. Ashland Oil, Inc. 183 AD2d 1033 N.Y. App. Div. 1992-05-14 at 1034 p. 1052
Smith v. New York State Electric & Gas Corp. 155 AD2d 850 N.Y. App. Div. 1989-11-22 p. 1052
Bailey v. New York Westchester Square Medical Centre 38 AD3d 119 N.Y. App. Div. 2007-01-09 at 125 p. 1052
Winegrad v. New York University Medical Center 64 NY2d 851 N.Y. 1985-02-12 at 853 p. 1052