B & L Wholesale Supply, Inc. v. Sonitrol Security Systems

38 A.D.3d 1267, 834 N.Y.S.2d 900

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 16, 2007
• Status: Published

Opinion

Appeal from an order of the Supreme Court, Monroe County (David D. Egan, J.), entered July 14, 2006. The order granted the motion of defendant for leave to renew its prior motion for summary judgment dismissing the complaint and, upon renewal, granted the motion.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum:

Almost three years after a fire on premises containing security systems installed by defendant, plaintiff, the owner of the premises, commenced this action seeking to recover damages allegedly arising from, inter alia, the failure of the security systems to prevent or mitigate the fire damage to the property. Plaintiff appeals from an order granting the motion of defendant for leave to renew its prior motion for summary judgment dismissing the complaint and, upon renewal, granting the motion for summary judgment on the ground that the action is time-barred pursuant to the one-year limitations period set forth in the parties’ contract. We conclude that Supreme Court properly granted the motions. Contrary to plaintiffs contention, defendant is not estopped from asserting the one-year limitations period in the contract. It cannot be said that plaintiff was “induced by fraud, misrepresentations or deception to refrain from filing a timely action” (Simcuski v Saeli, 44 NY2d 442, 449 [1978]; see Ragno v Nationwide Assoc., Inc., 35 AD3d 321 [2006]; Garcia v Peterson, 32 AD3d 992, 993 [2006]; Herman v Depinies, 273 AD2d 146, 147 [2000]). Present—Hurlbutt, J.P, Martoche, Smith, Fahey and Green, JJ.