Opinion
April 12, 1993
Appeal from the Supreme Court, Suffolk County (Floyd, J.).
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is affirmed, and it is further,
Ordered that the defendant is 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 (CPLR 5501 [a] [1]).
The plaintiff was allegedly injured in a fall on a stairway in the defendant's building. On this appeal from a judgment in favor of the defendant, the plaintiff contends that the court erred in submitting to the jury an interrogatory which limited the defendant's liability to the presence of duct tape on one of the steps. However, inasmuch as the evidence adduced at trial did not support any other theory of liability, the interrogatory was entirely proper. Indeed, it would have been erroneous to submit the interrogatory requested by the plaintiff since it included multiple theories of liability, at least one of which lacked supporting proof (see, Davis v Caldwell, 54 N.Y.2d 176; De Luca v Kameros, 130 A.D.2d 705; Cady v City of New York, 35 A.D.2d 202). Thompson, J.P., Rosenblatt, Pizzuto and Santucci, JJ., concur.