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Concetto v. Pedalino

Appellate Division of the Supreme Court of New York, Second Department
Sep 15, 2003
764 N.Y.S.2d 638 (N.Y. App. Div. 2003)

Opinion

2002-07535

Argued June 9, 2003.

September 15, 2003.

In an action to recover for damage to property, the plaintiff appeals from an order of the Supreme Court, Queens County (O'Donoghue, J.), dated June 27, 2002, which granted the defendants' motion for summary judgment dismissing the complaint and denied as academic her cross motion for leave to amend the complaint.

Mallilo Grossman, Flushing, N.Y. (Marie-Fabienne F. DeCastro of counsel), for appellant.

Curtis, Vasile, Devine McElhenny, Merrick, N.Y. (Michael G. Mehary of counsel), for respondents.

Before: DAVID S. RITTER, J.P., SONDRA MILLER, DANIEL F. LUCIANO, HOWARD MILLER, JJ.


DECISION ORDER

ORDERED that the order is affirmed, with costs.

The defendants met their prima facie burden on their motion for summary judgment by presenting evidence, in the form of their own affidavits and the deposition testimony of the plaintiff, which demonstrated that they were not aware of any problems with the ballast in the fluorescent light fixture in the basement bedroom that allegedly caused a fire ( see Associated Mut. Ins. Co. v. Kipp's Arcadian II, 298 A.D.2d 478). In opposition, the plaintiff failed to raise a triable issue of fact. Consideration of the affidavit of a purported notice witness is precluded due to the plaintiff's failure to properly disclose that witness in her discovery responses ( see Ortega v. New York City Tr. Auth., 262 A.D.2d 470; Robinson v. New York City Hous. Auth., 183 A.D.2d 434).

Although the Supreme Court improperly denied the plaintiff's cross motion for leave to amend her complaint as academic, the motion was properly denied because the proposed amendment is without merit. "Real Property Law § 235-b does not permit a tenant to recover [for] damage to personal property resulting from a breach of the warranty of habitability" ( Couri v. Westchester Country Club, 186 A.D.2d 712, 715; see Elkman v. Southgate Owners Corp., 233 A.D.2d 104).

The plaintiff's remaining contentions are without merit.

RITTER, J.P., S. MILLER, LUCIANO and H. MILLER, JJ., concur.


Summaries of

Concetto v. Pedalino

Appellate Division of the Supreme Court of New York, Second Department
Sep 15, 2003
764 N.Y.S.2d 638 (N.Y. App. Div. 2003)
Case details for

Concetto v. Pedalino

Case Details

Full title:TERESA CONCETTO, appellant, v. ANDREA PEDALINO, respondents

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Sep 15, 2003

Citations

764 N.Y.S.2d 638 (N.Y. App. Div. 2003)
764 N.Y.S.2d 638

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