Opinion
April 4, 1994
Appeal from the Supreme Court, Nassau County (DiNoto, 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 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]).
Once the plaintiff made a prima facie showing of its entitlement to summary judgment, the burden shifted to the defendant to come forward with evidentiary proof in admissible form sufficient to establish the existence of material issues of fact (see, Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324; see also, Crabtree v Arden Sales Corp., 305 N.Y. 48, 55; Russell v Henshel, 156 A.D.2d 181; Wurlitzer Co. v Playtime Distribs., 58 A.D.2d 684; 61 N.Y. Jur 2d, Statute of Frauds, § 156). Since the defendant failed to make such a showing, the Supreme Court properly granted summary judgment in the plaintiff's favor.
The defendant's remaining contentions are without merit. Balletta, J.P., Rosenblatt, Ritter and Altman, JJ., concur.