Opinion
December 9, 1985
Appeal from the Supreme Court, Suffolk County (Baisley, J.).
Appeal from the order dated August 23, 1983 dismissed (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] ). Plaintiff's cross appeal dismissed, without costs or disbursements, for failure to perfect the same in accordance with the rules of this court ( 22 NYCRR 670.20 [a], [f]).
Judgment affirmed.
Plaintiff is awarded one bill of costs.
On the motion for summary judgment, plaintiff established, by documentary evidence, both the facts underlying its cause of action and the lack of a triable issue of fact. The papers submitted in opposition failed to present evidentiary facts showing the existence of a genuine and substantial issue. In the absence of such an evidentiary showing, the motion for summary judgment was properly granted (see, La Touraine Coffee Co. v Deppe's Diner, 109 A.D.2d 824; Federal Deposit Ins. Corp. v A-Leet Commercial Servs., 70 A.D.2d 627).
Since the appellant-respondent failed to contest the Referee's report and the judgment entered thereon at Special Term, he cannot challenge it on appeal. Gibbons, J.P., Bracken, Lawrence and Kunzeman, JJ., concur.