Opinion
May 2, 1994
Appeal from the Supreme Court, Suffolk County (Henry, J.).
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is affirmed insofar as appealed from; and it is further,
Ordered that the respondents 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 N.Y.2d 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 (see, CPLR 5501 [a] [1]).
The infant plaintiff allegedly was injured when she fell at the defendant roller rink. An action was brought against the defendant, and the defendant's insurance carrier retained an attorney to represent the defendant. The parties entered into a stipulation of settlement, in which it was agreed that the insurance carrier would pay $15,000 to settle the claim. The court signed an infant's compromise order.
The insurance carrier sent two checks to the plaintiffs' attorney, one for $5,000 and one for $10,000. The $5,000 check was paid. However, the insurance company's checking account was subsequently frozen and the $10,000 check was not paid. The plaintiff then moved for judgment against the defendant in the sum of $10,000 and the defendant cross-moved, inter alia, to have the infant compromise order vacated. The court granted the plaintiffs' motion and denied the defendant's cross motion.
We find that the court did not err in rendering judgment against the defendant. Under the circumstances of this case, the common sense reading of the stipulation of settlement and the infant compromise order is that the defendant obligated itself to pay the $10,000 (see, Serna v. Pergament Distribs., 182 A.D.2d 985). There was no unequivocal expression that the settlement was conditioned upon payment by the insurance carrier, nor was the source of payment material to the plaintiffs (see, Cirrincione v Joseph A. Bruno, Inc., 143 A.D.2d 722). In addition, there was no indication in the stipulation of settlement that the defendant did not personally take part in the negotiation of the settlement, was not consulted in connection with it, and did not participate in its making (cf., Countryman v. Breen, 241 App. Div. 392, affd 268 N.Y. 643). Mangano, P.J., Thompson, Joy and Friedmann, JJ., concur.