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TERESA CONCETTO, appellant, v. ANDREA PEDALINO, respondents.

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.

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CONCETTO v. PEDALINO
(Sep 15, 2003)