DECISION ORDER
ORDERED that the appeal from the order is dismissed; and it is further,
ORDERED that the judgment is reversed, on the law, the order is vacated, the motion is denied, the verdict on the issue of liability is reinstated, and the matter is remitted to the Supreme Court, Queens County, for a trial on the issue of damages; and it is further,
ORDERED that one bill of costs is awarded to the plaintiff.
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 the appeal from the order are brought up for review and have been considered on the appeal from the judgment.
The Supreme Court erred in granting the defendant's motion to dismiss the complaint pursuant to CPLR 4401. In the present case, the plaintiff was required to establish that the defendant either created the defect or hazard through an affirmative act of negligence, because the defendant did not have prior written notice of the existence of the hazard (see Amabile v. City of Buffalo, 93 N.Y.2d 471; Bang v. Town of Smithtown, 291 A.D.2d 516). Here, the testimony of the plaintiff and his expert during trial provided sufficient evidence that the subject pothole was created through an affirmative act of negligence during the repaving of a roadway by the defendant only a few months before the accident (see Amabile v. City of Buffalo, supra; Gerena v. Town of Brookhaven, 280 A.D.2d 450; Mayer v. Town of Brookhaven, 266 A.D.2d 360; see also Gayle v. City of New York, 92 N.Y.2d 936). This evidence supplied a valid line of reasoning and permissible inferences which could possibly lead rational jurors to the conclusion of negligence (see Zeldin v. Mendelsohn, 288 A.D.2d 468; see generally Cohen v. Hallmark Cards, 45 N.Y.2d 493). Accordingly, the motion should have been denied.
SMITH, J.P., H. MILLER, COZIER and RIVERA, JJ., concur.