Marjam Supply Company, Inc., respondent, v Drywall Surgeon Specialists, Inc., defendant, Anthony Orlando, appellant. v. << (2010)

Submitted-October 14, 2010

DECISION & ORDER

In an action, inter alia, to recover damages for goods sold and delivered, the defendant Anthony Orlando appeals, as limited by his brief, from so much of a judgment of the Supreme Court, Orange County (Onofry, J.), dated September 21, 2009, as, upon an order of the same court dated September 17, 2009, granting that branch of the plaintiff's motion which was for summary judgment on the complaint insofar as asserted against him, is in favor of the plaintiff and against him in the principal sum of $85,037.77.

ORDERED that on the Court's own motion, the notice of appeal from the order dated September 17, 2009, is deemed a premature notice of appeal from the judgment (see CPLR 5520[c] );  and it is further,

ORDERED that the judgment is affirmed insofar as appealed from, with costs.

The plaintiff made a prima facie showing of its entitlement to judgment as a matter of law by the submission, inter alia, of documentary evidence and the affidavit of the plaintiff's Corporate Administrator (see Lebar Constr.   Corp v. HRH Constr.   Corp., 292 A.D.2d 506).   In opposition, the defendant Anthony Orlando (hereinafter the defendant) failed to raise a triable issue of fact (see Banco Popular N. Am. v. Victory Taxi Mgt., 1 NY3d 381, 384;  Beitner v. Becker, 34 AD3d 406, 408).   The defendant's remaining contentions are either without merit or not properly before this Court (see Pekich v. James E. Lawrence, Inc., 38 AD3d 632, 633).

Accordingly, the Supreme Court properly granted that branch of the plaintiff's motion which was for summary judgment on the complaint insofar as asserted against the defendant.

RIVERA, J.P., COVELLO, SANTUCCI and SGROI, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court