Memorandum: A judgment was entered after the entry of the order from which this appeal was taken. Where a prior order is subsumed within a judgment, the appeal is from the judgment, not the prior order (Chase Manhattan Bank v Roberts & Roberts, 63 AD2d 566). Nevertheless, absent prejudice to the respondent, this court has the discretionary power to treat the notice of appeal as one taken from the judgment, and we conclude that our discretion should be exercised in this case (CPLR 5520 [c]; Frankel v Manufacturers Hanover Trust Co., 106 AD2d 542; Chase Manhattan Bank v Roberts & Roberts, supra).
We further conclude that the judgment dismissing this action must be reversed. Hughes, Szymborski and Perna were injured on January 15, 1975 in an explosion at the old control
We find that Special Term erred by granting defendant’s motion to dismiss. Although defendant demonstrated that the written contracts did not require it to perform services in connection with the old control building, the affidavit of plaintiffs’ expert and the 1952 report prepared by defendant and annexed to that affidavit were adequate to raise issues of fact whether the scope of the project changed to include work on the old control building and whether defendant in fact performed design services relating to that building. Since a design engineer may be held liable to those endangered by the engineer’s negligence irrespective of privity (Clemens v Benzinger, 211 App Div 586, 590-591; see also, Cubito v Kreisberg, 69 AD2d 738, affd 51 NY2d 900), we reverse and deny defendant’s motion for summary judgment. (Appeal from judgment of Supreme Court, Erie County, Ostrowski, J. — summary judgment.) Present — Dillon, P. J., Green, Pine, Balio and Davis, JJ.