570 N.Y.S.2d 66
(Cite as: 173 A.D.2d 440, 570 N.Y.S.2d 66)

Action was filed to recover costs of goods sold and delivered. The Supreme Court, Suffolk County, Gerard, J., entered summary judgment for plaintiff and severed defendant's counterclaims, and subsequently entered judgment in favor of plaintiff. Defendant appealed. The Supreme Court, Appellate Division, held that: (1) right of direct appeal from intermediate order terminated with entry of judgment; (2) bare conclusory assertions by defendant were insufficient to defeat summary judgment for plaintiff; and (3) mere assertion of counterclaims, unsupported by proof that they are meritorious, did not bar relief to plaintiff who was otherwise entitled to summary judgment.

Appeal dismissed; judgment affirmed.

[1] Appeal and Error k74
30k74

Direct appeal from intermediate order granting plaintiff's motion for summary judgment terminated with entry of judgment in trial on plaintiff's claims.

[2] Judgment k181(15.1)
228k181(15.1)
(Formerly 228k181(15))

Bare conclusory assertions by defendant were insufficient to defeat summary judgment in favor of plaintiff in action for breach of contract, account stated, and goods sold and delivered.

[3] Judgment k181(10)
228k181(10)

Mere assertion of counterclaims, unsupported by proof that they were meritorious, did not bar relief to plaintiff who was otherwise entitled to summary judgment.

**66 Weg & Myers, P.C., New York City (Frank A. Weg, Dennis T. D'Antonio and Eric S. Fenyes, of counsel), for appellant.

Newman Tannenbaum Helpern Syracuse & Hirschtritt, New York City (Vincent J. Syracuse and Yolanda Kanes, of counsel), for respondent.

Before HARWOOD, J.P., and BALLETTA, ROSENBLATT and O'BRIEN, JJ.

MEMORANDUM BY THE COURT.

*440 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.

[1] 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 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647). 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] ).

[2] 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 **67 v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572; Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718; Steingart Assoc. v. Sandler, 28 A.D.2d 801, 280 N.Y.S.2d 1012). This the defendant failed to do. Bare conclusory assertions are insufficient to defeat summary judgment (see, Fink, Weinberger, Fredman, Berman & Lowell v. Petrides, 80 A.D.2d 781, 437 N.Y.S.2d 1; Steingart Assoc. v. Sandler, supra).

[3] 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, N.Y.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 A.D.2d 873, 264 N.Y.S.2d 454, affd. 17 *441 N.Y.2d 909, 272 N.Y.S.2d 132, 218 N.E.2d 898).