P.B. Ogden, Inc. v. Jordache Development, Inc.

—Appeal from an order of Supreme Court, Monroe County (Stander, J.), entered September 24, 2001, which granted in part plaintiffs motion for summary judgment and granted judgment against defendants and in favor of plaintiff in the amount of $137,203.39, plus interest in the amount of $30,044.25 and attorney’s fees in the amount of $12,059. 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 in part plaintiffs motion for summary judgment on the promissory note and guaranty. Contrary to the contention of defendants, they failed to raise a triable issue of fact with respect to the defense of partial payment. Neither of the cancelled checks submitted by defendants in opposition to the motion is referable by its terms to the promissory note and guaranty, and their concluSory assertion of partial payment is insufficient to defeat plaintiffs motion (see Sacco v Sutera, 266 AD2d 446, 447; Phillips v Cioffi, 204 AD2d 94, 95, lv denied 85 NY2d 810; Inter Bus. Mktg. v Kronengold, 135 AD2d 474). Present— Pigott, Jr., P.J., Wisner, Scudder, Burns and Gorski, JJ.