Opinion
June 28, 1993
Appeal from the Supreme Court, Nassau County (Collins, 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 respondent 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 (CPLR 5501 [a] [1]).
South Carolina Steel Corporation commenced this action against the defendant Nationwide Steel Corporation (hereinafter Nationwide) and its officers George O'Brien and Anthony Coggiano to recover payment for certain materials it supplied and work it performed.
By order dated March 31, 1989, the trial court (Collins, J.), granted the plaintiff's motion for summary judgment against Nationwide in its entirety. As to the defendants O'Brien and Coggiano, however, the trial court only granted the plaintiff's motion for summary judgment with regard to its first cause of action for an accounting pursuant to the statutory trust provision of Lien Law article 3-A. As to the plaintiff's second cause of action for compensatory damages arising from O'Brien and Coggiano's participation in the breach of a trust, the court found triable issues of fact. Before this Court affirmed this determination (see, South Carolina Steel Corp. v. Miller, 170 A.D.2d 592), certain discovery took place and the plaintiff again moved for summary judgment against O'Brien and Coggiano on its second cause of action for compensatory damages and the court granted its motion. The plaintiff was awarded damages against both O'Brien and Coggiano. We affirm.
The plaintiff established a prima facie case of participation in the breach of a trust by O'Brien and Coggiano (see, Ace Hardwood Flooring Co. v. Glazer, 74 A.D.2d 912; Scriven v. Maple Knoll Apts., 46 A.D.2d 210; Fleck v. Perla, 40 A.D.2d 1069). Further, O'Brien and Coggiano failed to adequately raise triable issues of fact in opposition to the plaintiff's motion. Thus, the award to the plaintiff of damages against O'Brien and Coggiano was proper (see, Fleck v. Perla, supra).
We have reviewed the parties' remaining contentions and find them to be without merit. Thompson, J.P., Bracken, Balletta and Eiber, JJ., concur.