| Center Candy, Inc. v CJB Food Mart, Inc. |
| 2008 NY Slip Op 03161 [50 AD3d 723] |
| April 8, 2008 |
| Appellate Division, Second Department |
| Center Candy, Inc., Respondent, v CJB Food Mart, Inc.,Doing Business as CJB Food Mart, Doing Business as Exxon Gas Station & Convenience Store,Appellant. |
—[*1] Stephen M. Abrami, Jericho, N.Y., for respondent.
In an action, inter alia, to recover payment for goods sold and delivered, the defendantappeals from (1) an order of the Supreme Court, Nassau County (Parga, J.), entered January 29,2007, which granted the plaintiff's motion for summary judgment on the complaint, and (2) ajudgment of the same court entered March 12, 2007, which, upon the order, is in favor of theplaintiff and against it in the principal sum of $41,335.81.
Ordered that the appeal from the order entered January 29, 2007 is dismissed; and it isfurther,
Ordered that the judgment is reversed, on the law, the plaintiff's motion for summaryjudgment on the complaint is denied, and the order entered January 29, 2007 is modifiedaccordingly; and it is further,
Ordered that one bill of costs is awarded to the defendant.
The appeal from the intermediate order must be dismissed because the right of direct appealtherefrom terminated with the entry of judgment in the action (see Matter of Aho, 39NY2d 241, 248 [1976]). The issues raised on appeal from the order are brought up for review andhave been considered on the appeal from the judgment (see CPLR 5501 [a] [1]).[*2]
In support of its motion for summary judgment on thecomplaint, the plaintiff submitted conflicting evidence and, therefore, did not make a prima facieshowing of its entitlement to judgment as a matter of law (see Alvarez v Prospect Hosp.,68 NY2d 320, 324 [1986]). Accordingly, the plaintiff's motion for summary judgment on thecomplaint should have been denied.
The defendant's remaining contention has been rendered academic in light of ourdetermination. Spolzino, J.P., Miller, Covello and Balkin, JJ., concur.