Loaiza v. Tokyo Ramen LLC

2024 NY Slip Op 32534(U)

• Court: New York Supreme Court, New York County
• Decided: July 24, 2024
• Docket: Index No. 151151/2021
• Status: Unpublished

Opinion

Loaiza v Tokyo Ramen LLC 2024 NY Slip Op 32534(U) July 24, 2024 Supreme Court, New York County Docket Number: Index No. 151151/2021 Judge: Mary V. Rosado Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 151151/2021 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 07/24/2024

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. MARY V. ROSADO PART 33M Justice -----------------------------X INDEX NO. 151151/2021 HILDA JUDY LOAIZA, MOTION DATE 07/20/2024 Plaintiff, MOTION SEQ. NO. 001 - V -

TOKYO RAMEN LLC D/8/A KITAKATA RAMEN, G&L DECISION + ORDER ON REAL TY DELAWARE LLC MOTION Defendant. ------------------------------------------------------------X

The following e-filed documents, listed by NYSCEF document number (Motion 001) 32, 33, 34, 35, 36, 37, 38, 39,40,41,42,43,44,45 were read on this motion to/for JUDGMENT-SUMMARY Upon the foregoing documents, Defendant Tokyo Ramen LLC d/b/a Kitakata Ramen's

("Tokyo Ramen") motion for summary judgment dismissing Plaintiffs Complaint is granted in

part and denied in part.

I. Background

This case arises from Plaintiffs fall down a staircase at the premises located at 267

Amsterdam Avenue, New York, New York (see generally NYSCEF Doc. 1). At the time of the

incident, the premises were owned by Defendant G&L Realty Delaware LLC ("G&L") and leased

by Tokyo Ramen (NYSCEF Doc. 34, Exhibit M).

In her bill of particulars, Plaintiff alleged that her accident was caused by inadequate

lighting, broken handrails, and risers which were not uniform in height. Plaintiff was heading to

the restroom when she fell. Tokyo Ramen now moves for summary judgment, arguing that the

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staircase which Plaintiff fell down was open and obvious. It also argues that because it did not own

the premises, it does not owe Plaintiff a duty of care 1.

Plaintiff opposes and argues that Tokyo Ramen, as a tenant in possession, owed Plaintiff a

duty to maintain the property in a safe condition. Plaintiff also argues that Tokyo Ramen has failed

to make a showing that the stairs were not dangerous, and points to issues of fact, including the

narrowness of the stairway, the abrupt stairway opening, and the improper position of the handrail.

Plaintiff also produced an expert affidavit from Stanley Fein, P.E. who testified that the narrowness

of the stairs, lack of a handrail, and the perpendicular position of the landing to the doorway

constituted a trap-like hazard. He avers that the stairs violated provisions of the New York City

Administrative Code (NYSCEF Doc. 43).

In reply, Tokyo Ramen argues that it owed no duty to Plaintiff with regard to claimed

structural or design defects and argues that because Mr. Fein did not actually inspect the stairs

where Plaintiff fell, his opinion should be rejected as speculative.

II. Discussion

"Summary judgment is a drastic remedy, to be granted only where the moving party has

tendered sufficient evidence to demonstrate the absence of any material issues of fact." (Vega v

Restani Const. Corp., 18 NY3d 499, 503 [2012]). The moving party's "burden is a heavy one and

on a motion for summary judgment, facts must be viewed in the light most favorable to the non-

moving party." (Jacobsen v New York City Health and Hasps. Corp., 22 NY3d 824, 833 [2014]).

Once this showing is made, the burden shifts to the party opposing the motion to produce

evidentiary proof, in admissible form, sufficient to establish the existence of material issues of fact

1 Although not requested in their notice of motion, Tokyo Ramen also makes arguments for the dismissal of G&L's crossclaims asserted against Tokyo Ramen. There is no opposition to Tokyo Ramen's arguments for dismissal of the crossclaims and therefore they are granted. 151151/2021 LOAIZA, HILDA JUDY vs. TOKYO RAMEN LLC D/B/A Page 2 of 4 Motion No. 001

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which require a trial. See e.g., Zuckerman v City of New York, 49 NY2d 557, 562 [1980];

Pemberton v New York City Tr. Auth., 304 AD2d 340, 342 [1 st Dept 2003]). Mere conclusions of

law or fact are insufficient to defeat a motion for summary judgment (see Banco Popular North

Am. v Victory Taxi Mgt., Inc., l NY3d 381 [2004]).

Viewing the facts in the light most favorable to the non-movant, and given the expert

affidavit of Mr. Fein, the Court finds there are triable issues of fact which preclude granting Tokyo

Ramen summary judgment. Whether a condition is open and obvious is generally a jury question

(Westbrook v WR Activities-Cabrera Markets, 5 AD3d 69, 72 [1st Dept 2004]). Here, there is

testimony that because the staircase was narrow and perpendicular, and partially blocked by a

container, Plaintiff was unable to see the staircase before her fall. Viewing these facts in the light

most favorable to Plaintiff, the Court cannot hold, as a matter of law, that the staircase was open

and obvious (see also Burgdoerfer v CLKIHP 90 Merrick LLC, 170 AD3d 427 [1st Dept 2019];

Brown v Carda CL Atlantic, Inc., 150 AD3d 542 [1st Dept 2017]; Juoniene v HR.H Const. Corp.,

6 AD3d 199 [1st Dept 2004]).

Likewise, Tokyo Ramen's argument that it did not owe Plaintiff a duty is without merit.

Tokyo Ramen was an in-possession tenant of the premises and Plaintiff was a customer. A

commercial tenant has a duty to maintain its premises in a reasonably safe condition, including

providing a safe means of ingress and egress (Nyambuu v Whole Foods Market Group, Inc., 191

AD3d 580 [1st Dept 2021]; Han Bin Hu v Bravo Food, Inc., 170 AD3d 818 [2d Dept 2019]). This

includes maintaining staircases on the premises in a reasonably safe condition (Branch v SDC

Discount Store, Inc., 127 AD3d 54 7 [1st Dept 2015]). Therefore, based on the record before the

Court, summary judgment dismissing Plaintiffs Complaint against Tokyo Ramen is inappropriate.

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Accordingly, it is hereby,

ORDERED that Defendant Tokyo Ramen' s motion for summary judgment is granted in

part and denied in part; and it is further

ORDERED that Defendant Tokyo Ramen' s motion for summary judgment dismissing

Defendant G&L Realty Delaware LLC ' s crossclaims against it is granted as unopposed; and it is

further

ORDERED that Defendant Tokyo Ramen' s motion for summary judgment is otherwise

denied; and it is further

ORDERED that within ten days of entry, counsel for Plaintiff shall serve a copy of this

Decision and Order, with notice of entry, on all parties via NYSCEF; and it is further

ORDERED that the Clerk of the Court is directed to enter judgment accordingly.

This constitutes the Decision and Order of the Court.

7/24/2024 DATE HON. MA~Y V. ROSADO, J.S.C.

~ CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION

GRANTED □ DENIED GRANTED IN PART □ OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER

CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE

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