Katz v Kim

Katz v Kim 2009 NY Slip Op 02845 [61 AD3d 488] April 14, 2009 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, June 10, 2009

Michael Katz et al., Respondents,
v
Jae Moon Kim et al. Defendants, and City of New York, Respondent. Michael Katz et al., Respondents, v Adellco Development, LLC, et al., Defendants, and One Hand Realty, LLC, Appellant. (And Other Actions.)

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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 City of New York, respondent.

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.

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 Atl. & Pac. Tea Co., 209 AD2d 294, 295 [1994]). Plaintiff's testimony as well as the photographs and affidavit from plaintiff's expert were properly relied upon by the motion court in determining that One Hand was not entitled to summary judgment. [*2]

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 [1983]). Concur—Saxe, J.P., Friedman, Sweeny, Acosta and Freedman, JJ.