Opinion
May 6, 1991
Appeal from the Supreme Court, Suffolk County (Gerard, J.).
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 N.Y.2d 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 N.Y.2d 320; Zuckerman v City of New York, 49 N.Y.2d 557; Steingart Assocs. v Sandler, 28 A.D.2d 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 A.D.2d 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, 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, affd 17 N.Y.2d 909). Harwood, J.P., Balletta, Rosenblatt and O'Brien, JJ., concur.