Riverside Inn Real Estate Partnership, LP v. Niagara Gorge Jet Boating, Ltd.

Appeal from an order of the Supreme Court, Niagara County [1329] (Amy J. Fricano, J.), entered September 20, 2005. The order, among other things, granted plaintiff’s motion for summary judgment in lieu of complaint and granted plaintiff judgment in the amount of $528,643.28. It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs. Memorandum: Supreme Court properly granted plaintiff’s motion for summary judgment in lieu of complaint pursuant to CPLR 3213 inasmuch as plaintiff established its entitlement to judgment as a matter of law and defendant failed to raise an issue of fact (see Gittleson v Dempster, 148 AD2d 578 [1989], lv denied 74 NY2d 603 [1989]). Plaintiff established as a matter of law that defendant defaulted under the promissory note at issue by failing to make the required payment in September 2004, and plaintiff further established that it provided defendant with adequate notice of default (see generally Abax, Inc. v Lehrer McGovern Bovis, Inc., 8 AD3d 92 [2004]). Contrary to the contention of defendant, it is not entitled to a setoff of the amount of damages it owes to plaintiff based on the alleged violation of a lease between defendant and a third party (see Stevens v Phlo Corp., 288 AD2d 56 [2001]). Present—Kehoe, J.P., Martoche, Smith and Pine, JJ.