| Adika v Dramitinos |
| 2010 NY Slip Op 04937 [74 AD3d 848] |
| June 8, 2010 |
| Appellate Division, Second Department |
| Meir Adika, Respondent, et al., Plaintiffs, v NitsaDramitinos et al., Defendants, and George Dramitinos et al.,Appellants. |
—[*1] Cohen, Estis & Associates, LLP, Goshen, N.Y. (Stuart Thalblum of counsel), forrespondent.
In an action, inter alia, to recover damages for negligence, breach of contract, and breach ofwarranty of quiet enjoyment, the defendants George Dramitinos, Eleni Dramitinos, and GNERealty, LLC, appeal (1) from an order of the Supreme Court, Queens County (Taylor, J.), datedJune 12, 2009, which denied, as untimely, their motion for summary judgment dismissing thecomplaint insofar as asserted against them by the plaintiff Meir Adika, and (2), as limited bytheir brief, from so much of an order of the same court dated September 28, 2009, as, uponrenewal, adhered to the original determination.
Ordered that the appeal from the order dated June 12, 2009, is dismissed as academic, inlight of our determination on the appeal from the order dated September 28, 2009; and it isfurther,
Ordered that the order dated September 28, 2009, is reversed insofar as appealed from, onthe law, on the facts, and in the exercise of discretion, upon renewal, the order dated June 12,2009, is vacated, and the motion of the defendants George Dramitinos, Eleni Dramitinos, andGNE Realty, LLC, for summary judgment dismissing the complaint insofar as asserted againstthem by the plaintiff Meir Adika is granted; and it is further,
Ordered that one bill of costs is awarded to the appellants.
The Supreme Court improvidently exercised its discretion in refusing to entertain theappellants' motion on the merits, on the ground that the motion was made five days after theexpiration of 120 days after the filing of a note of issue (see CPLR 3212 [a]; Brill v City of New York, 2 NY3d648, 652 [2004]). Upon renewal, the appellants established that there was good cause for thedelay. Among other things, the New York State Unified Court System's public Web siteincorrectly stated [*2]that the note of issue was filed five daysafter it was in fact filed, the appellants reasonably relied upon the public Web site (see e.g. Matter of L & Q Realty Corp. vAssessor, 71 AD3d 1025 [2010]), and the appellants had no reason to believe that theinformation contained in the public Web site was not correct.
On the merits, the appellants, as the landlord of the plaintiff Meir Adika, established theirentitlement to judgment as a matter of law based upon the affidavit of an expert stating that thefire which damaged the leased premises was caused by an upstairs tenant's failure to cleanaccumulations of lint in a dryer inside the upstairs tenant's apartment, and not by any action orinaction by the appellants. The appellants further established that Adika acknowledged in writingthat their "obligation has been met to restore my premises as it was prior to the fire," and that theappellants had no obligation pursuant to the terms of the lease to repair or replace Adika's"furniture and/or furnishings or any fixtures or equipment, improvements, or appurtenancesremovable by tenant." The appellants further established as a matter of law that they did notdisturb Adika's beneficial enjoyment and possession of the premises. In opposition, Adika failedto raise a triable issue of fact.
Adika's remaining contentions are without merit, or are not properly before this Court.Fisher, J.P., Covello, Hall and Sgroi, JJ., concur.