Opinion
No. 314.
April 14, 2009.
Order, Supreme Court, New York County (Karen Smith, J.), entered March 17, 2008, which, to the extent appealed from, granted plaintiffs leave to amend the verified complaint and the verified bill of particulars and denied defendant One Hand Realty's (One Hand) cross motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Ellen Rothstein, New York, for appellant.
Weiser Associates, P.C., New York (Martin J. Weiser of counsel), for Katz respondents.
Michael A. Cardozo, Corporation Counsel, New York (Karen M. Griffin of counsel), for The City of New York, respondent.
Before: Saxe, J.P., Friedman, Sweeny, Acosta and Freedman, JJ.
Defendant One Hand failed to establish as a matter of law that it did not create or have notice of the alleged defective condition ( Colt v Great Ail. Pac. Tea Co., 209 AD2d 294, 295). Plaintiffs testimony as well as the photographs and affidavit from plaintiffs expert were properly relied upon by the motion court in determining that One Hand was not entitled to summary judgment.
Plaintiff was properly granted leave to amend his complaint and bill of particulars (CPLR 3025 [b]; McCaskey, Davies Assoc., v New York City Health Hosps. Corp., 59 NY2d 755).