Lebar Construction Corp. v. HRH Construction Corp.

292 A.D.2d 506, 739 N.Y.S.2d 294, 2002 N.Y. App. Div. LEXIS 3013

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 18, 2002
• Status: Published

Opinion

In an action, inter alia, to recover fees owed pursuant to a consulting contract, the defendant appeals from (1) an order of the Supreme Court, Suffolk County (Floyd, J.), dated December 8, 2000, which granted the plaintiffs motion for summary judgment, and (2) a judgment of the same court, entered January 11, 2001, which is in favor of the plaintiff and against it in the principal sum of $274,665.51.

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 fees owed pursuant to a consulting contract, the plaintiff established its prima facie entitlement to summary judgment by submitting the affidavit of its president and sole shareholder, invoices in which it demanded payment for consulting fees earned by it in conjunction with a construction project, and the verified complaint with the consulting contract annexed (see, Zuckerman v City of New York, 49 NY2d 557; CPLR 105 [u]; Morgan Barrington Assoc. ofN.Y. v 175 E. 74th Corp., 266 AD2d 106). Contrary to the defendant’s contention, the Supreme Court also properly considered the plaintiffs reply papers which responded to matters raised in the defendant’s opposition (see, Ticor Tit. Guar. Co. v Bajraktari, 261 AD2d 156; Piraeus Jewelry v Interested Underwriters at Lloyd’s, 246 AD2d 386). The defendant failed to come forward with evidence sufficient to raise a triable issue of fact and, consequently, the Supreme Court properly granted the plaintiffs motion.

In light of our determination, we need not reach the defendant’s remaining contentions regarding the plaintiff’s cause of action to recover on an account stated. Altman, J.P., Krausman, Goldstein and H. Miller, JJ., concur.