Opinion
3477.
Decided April 27, 2004.
Order, Supreme Court, Bronx County (Anne E. Targum, J.), entered July 7, 2003, which denied defendant Automotive Realty's motion for summary judgment and granted plaintiff's cross motion to amend her pleadings to add a former third-party defendant, Auto Show Corp., as a party defendant, unanimously affirmed, without costs.
Law Office of Vincent D. McNamara, East Norwich, (Anthony Marino of counsel), for appellant.
Paul A. Burg, New York, for respondent.
Before: Nardelli, J.P., Saxe, Sullivan, Gonzalez, JJ.
Automotive Realty failed to establish its prima facie entitlement to summary judgment as a matter of law ( see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853), having submitted no affidavit from a person with knowledge of the facts. The affidavit of its president was insufficient to resolve numerous questions of fact as to liability for the condition that caused plaintiff's injuries. Moreover, Automotive Realty bore the burden of demonstrating lack of evidence as to how the condition had come into existence in the first place, how visible and apparent it was, and for how long a period of time it had existed prior to the accident ( Jacques v. Richal Enters., 300 A.D.2d 45, 46).
Plaintiff's request to amend her pleadings satisfied the three-part test for adding a new party relating back, for limitations purposes, to her earlier pleading against the original defendant ( Buran v. Coupal, 87 N.Y.2d 173, 177-178).
We have considered the appellant's remaining contentions and find them to be without merit.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.