Almonte v. Shara Associates

Appellate Division of the Supreme Court of New York

Almonte v. Shara Associates

248 A.D.2d 288, 670 N.Y.S.2d 84, 1998 N.Y. App. Div. LEXIS 3281

Appellate Division of the Supreme Court of the State of New York·Decided March 26, 1998·Published·Cited by 5 cases

Opinion

—Order, Supreme Court, Bronx County (Howard Silver, J.), entered October 1, 1997, which denied defendants’ motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

We affirm for the following reasons: Defendants’ summary judgment motion was untimely, having been made more than 120 days after both the filing of the note of issue and the effective date (January 1, 1997) of the recent amendment to CPLR 3212 (a) (see, Phoenix Garden Rest, v Chu, 245 AD2d 164). In any event, we agree with the IAS Court that a question of fact exists as to whether the assailants were intruders. Plaintiffs’ sworn statements describe the means by which the assailants gained entry to the building, to wit, through the rear courtyard and an unlocked doorway thereto, which raises an inference that the assailants were neither tenants nor guests of tenants. Further, plaintiffs assert that they know all of the tenants of the building either by name or “by face”, and did not recognize the assailants as tenants or as guests of tenants (see, Naranjo v New York City Hous. Auth., 247 AD2d 246, distinguishing Burgos v Aqueduct Realty Corp., 245 AD2d 221).

Concur— Lerner, P. J., Milonas, Rosenberger, Nardelli and Williams, JJ.

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—Order, Supreme Court, Bronx County (Howard Silver, J.), entered October 1, 1997, which denied defendants’ motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

We affirm for the following reasons: Defendants’ summary judgment motion was untimely, having been made more than 120 days after both the filing of the note of issue and the effective date (January 1, 1997) of the recent amendment to CPLR 3212 (a) (see, Phoenix Garden Rest, v Chu, 245 AD2d 164). In any event, we agree with the IAS Court that a question of fact exists as to whether the assailants were intruders. Plaintiffs’ sworn statements describe the means by which the assailants gained entry to the building, to wit, through the rear courtyard and an unlocked doorway thereto, which raises an inference that the assailants were neither tenants nor guests of tenants. Further, plaintiffs assert that they know all of the tenants of the building either by name or “by face”, and did not recognize the assailants as tenants or as guests of tenants (see, Naranjo v New York City Hous. Auth., 247 AD2d 246, distinguishing Burgos v Aqueduct Realty Corp., 245 AD2d 221).

Concur— Lerner, P. J., Milonas, Rosenberger, Nardelli and Williams, JJ.

Almonte v. Shara Associates, 248 A.D.2d 288, 670 N.Y.S.2d 84, 1998 N.Y. App. Div. LEXIS 3281 (N.Y. Ct. App. 1998).

Pincite

248 A.D.2d 288 (Almonte v. Shara Associates) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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