SHAH v. HAMPTONS HAUTE INC (2002)

In an action to recover on a guarantee brought by motion for summary judgment in lieu of complaint pursuant to CPLR 3213, the defendants appeal from (1) an order of the Supreme Court, Nassau County (Austin, J.), dated December 14, 2001, which granted the motion, and (2) a judgment of the same court, entered March 29, 2002, which is in favor of the plaintiff and against them in the principal sums of $90,357.85 on the guarantee and $4,100 for an attorney's fee.

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 one bill of costs is awarded to the plaintiff.

 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 the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a] [1] ).

 Contrary to the defendants' contention, the plaintiff demonstrated his entitlement to summary judgment by presenting the promissory note and guarantee and proof of nonpayment (see Interman Indus. Prods. v. R.S.M. Electron Power, 37 N.Y.2d 151, 371 N.Y.S.2d 675, 332 N.E.2d 859;  Naugatuck Sav. Bank v, Gross, 214 A.D.2d 549, 625 N.Y.S.2d 572;  Gittleson v. Dempster, 148 A.D.2d 578, 539 N.Y.S.2d 46).   The defendants, in opposition to the motion, set forth only conclusory allegations, which were insufficient to raise a triable issue of fact (see Interman Inds. Prods. v. R.S.M. Electron Power, supra;  Naugatuck Sav. Bank v. Gross, supra;  Federal Deposit Ins. Corp. v. Jacobs, 185 A.D.2d 913, 587 N.Y.S.2d 978;  Gittleson v. Dempster, supra).   Accordingly, the Supreme Court properly granted the plaintiff's motion for summary judgment in lieu of complaint pursuant to CPLR 3213.

The defendants' remaining contentions are without merit.