Hartz Mountain Corp. v. Allou Distributors, Inc.

173 A.D.2d 440, 570 N.Y.S.2d 66, 1991 N.Y. App. Div. LEXIS 6989

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 6, 1991
• Status: Published

Opinion

In an action, inter alia, to recover the cost of goods sold and delivered, the defendant appeals from (1) an order of the Supreme Court, Suffolk County (Gerard, J.), entered November 22, 1989, which granted the plaintiff’s motion for summary judgment on the complaint and severed the defendant’s counterclaims for trial, and (2) a judgment of the same court entered December 12, 1989, which, inter alia, is in favor of the plaintiff and against it in the principal sum of $59,229.92.

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 plaintiff 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 (see, CPLR 5501 [a] [1]).

In this action to recover damages for breach of contract, account stated, and goods sold and delivered, the plaintiff, as the moving party, made a prima facie showing of its entitlement to summary judgment in its favor. Accordingly, it was incumbent upon the defendant to come forth with evidentiary proof in admissible form sufficient to demonstrate the existence of triable issues of fact (see, Alvarez v Prospect Hosp., 68 NY2d 320; Zuckerman v City of New York, 49 NY2d 557; Steingart Assocs. v Sandler, 28 AD2d 801). This the defendant failed to do. Bare conclusory assertions are insufficient to defeat summary judgment (see, Fink, Weinberger, Fredman, Berman & Lowell v Petrides, 80 AD2d 781; Steingart Assocs. v Sandler, supra).

Moreover, under the facts of this case, the court properly severed the defendant’s counterclaims from the action and granted the plaintiff summary judgment, on the complaint (see generally, 4 Weinstein-Korn-Miller, NY Civ Prac 3212.17). The mere assertion of counterclaims, unsupported by proof that they are meritorious, will not bar relief to a plaintiff who is otherwise entitled to summary judgment (see, M & S Mercury Air Conditioning Corp. v Rodolitz, 24 AD2d 873, affd 17 ). Harwood, J. P., Balletta, Rosenblatt and O’Brien, JJ., concur.