Blue Cross and Blue Shield of Western New York, Inc., Respondent, v. Joseph P. Michael, Defendant, and J. P. Michael, Inc., Also Known as Employee Benefits Services, et al., Appellants

—Judgment unanimously affirmed with costs. Memorandum: We affirm for reasons stated in the decision at Supreme Court (Kane, J.). We note that the appeal was taken from that part of an order that was subsumed in a subsequent judgment, and thus the appeal is properly taken from the judgment, not the order (see, Hughes v Nusshaumer, Clarke & Velzy, 140 AD2d 988). We exercise our discretion to disregard the misstatement in the notice of appeal, and we treat the appeal as taken from the judgment (see, CPLR 5520 [c]; Hughes v Nusshaumer, Clarke & Velzy, supra). (Appeal from Judgment of Supreme Court, Erie County, Kane, J. — Summary Judgment.) Present — Green, J. P., Pigott, Jr., Balio and Fallon, JJ.