Opinion
2001-00840, 2001-07730
Argued February 21, 2002.
March 18, 2002.
In an action, inter alia, to recover fees owed pursuant to a consulting contract, the defendant appeals from (1) an order of the Supreme Court, Suffolk County (Floyd, J.), dated December 8, 2000, which granted the plaintiff's motion for summary judgment, and (2) a judgment of the same court, entered January 11, 2001, which is in favor of the plaintiff and against it in the principal sum of $274,665.51.
Charles R. Pierce, Jr., P.C., Huntington, N.Y., for appellant.
Meyer, Suozzi, English Klein, P.C., Mineola, N.Y. (Jeffrey G. Stark of counsel), for respondent.
Before: MYRIAM J. ALTMAN, J.P., GABRIEL M. KRAUSMAN, GLORIA GOLDSTEIN, HOWARD MILLER, JJ.
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 fees owed pursuant to a consulting contract, the plaintiff established its prima facie entitlement to summary judgment by submitting the affidavit of its president and sole shareholder, invoices in which it demanded payment for consulting fees earned by it in conjunction with a construction project, and the verified complaint with the consulting contract annexed (see, Zuckerman v. City of New York, 49 N.Y.2d 557; CPLR 105[u]; Morgan Barrington Assocs. of N.Y. v. 175 E. 74th Corp., 266 A.D.2d 106). Contrary to the defendant's contention, the Supreme Court also properly considered the plaintiff's reply papers which responded to matters raised in the defendant's opposition (see, Ticor Tit. Guar. Co. v. Bajraktari, 261 A.D.2d 156; Piraeus Jewelry v. Interested Underwriters at Lloyd's, 246 A.D.2d 386). The defendant failed to come forward with evidence sufficient to raise a triable issue of fact and, consequently, the Supreme Court properly granted the plaintiff's motion.
In light of our determination, we need not reach the defendant's remaining contentions regarding the plaintiff's cause of action to recover on an account stated.
ALTMAN, J.P., KRAUSMAN, GOLDSTEIN and H. MILLER, JJ., concur.