Opinion
March 11, 1996
Appeal from the Supreme Court, Suffolk County (Cohalan, J.).
Ordered that the appeal from the order dated June 28, 1994, is dismissed; and it is further,
Ordered that the order and judgment is affirmed insofar as appealed from; 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]).
The plaintiff proved its entitlement to judgment as a matter of law by submitting in support of its motion proof of the promissory notes and guaranties, and of the defendant's failure to make the payments provided for by the terms of those notes and guaranties (see, Governor Co. v Dromoland Castle, 212 A.D.2d 759; Gateway State Bank v Shangri-La Private Club for Women, 113 A.D.2d 791, affd 67 N.Y.2d 627; Silber v Muschel, 190 A.D.2d 727). Accordingly, it was incumbent upon the defendant to come forward with proof in admissible form of the existence of triable issues of fact (see, Gateway State Bank v Shangri-La Private Club for Women, supra). However, the defendant's unsubstantiated and conclusory allegations failed to raise triable issues of fact which would have precluded the court from granting the plaintiff's motion (see, North Fork Bank v Hamptons Mist Mgt. Corp., 225 A.D.2d 595 [decided herewith]; North Fork Bank v Hamptons Mist Mgt. Corp., 225 A.D.2d 596 [decided herewith]).
Moreover, while we agree that it was improper for the Supreme Court to hold that the April 24, 1991, release executed by the defendant in favor of the plaintiff served as a defense to all of the defendant's counterclaims (see, A.F.L. Falck, S.p.A. v Karay Co., 639 F. Supp. 314, 320), the counterclaims were properly dismissed as the defendant failed to raise triable issues of fact with respect to those counterclaims (cf., Nassau Trust Co. v Montrose Concrete Prods. Corp., 56 N.Y.2d 175; Alumax Aluminum Corp. v Norstar Bank, 168 A.D.2d 163).
We have examined the defendant's remaining contentions and find them to be without merit. Sullivan, J.P., Santucci, Friedmann and Krausman, JJ., concur.