Energy Savings Products, Inc. v. Milici

203 A.D.2d 235, 612 N.Y.S.2d 886, 1994 N.Y. App. Div. LEXIS 3194

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 4, 1994
• Status: Published

Opinion

—In an action to enforce a guarantee of a debt, the defendant appeals from (1) an order of the Supreme Court, Nassau County (DiNoto, J.), dated July 10, 1991, which, inter alia, granted the plaintiff’s cross motion for summary judgment, and (2) a judgment of the same court, entered November 18, 1992, which is in favor of the plaintiff and against it in the principal sum of $34,020.41, and awarded the plaintiff attorney’s fees.

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 respondent 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 NY2d 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]).

Once the plaintiff made a prima facie showing of its entitlement to summary judgment, the burden shifted to the defendant to come forward with evidentiary proof in admissible form sufficient to establish the existence of material issues of fact (see, Alvarez v Prospect Hosp., 68 NY2d 320, 324; see also, Crabtree v Arden Sales Corp., 305 NY 48, 55; Russell v Henshel, 156 AD2d 181; Wurlitzer Co. v Playtime Distribs., 58 AD2d 684; 61 NY Jur 2d, Statute of Frauds, § 156). Since the defendant failed to make such a showing, the Supreme Court properly granted summary judgment in the plaintiff’s favor.

The defendant’s remaining contentions are without merit. Balletta, J. P., Rosenblatt, Ritter and Altman, JJ., concur.