### 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.NYSCEF DOC. NO. 46 INDEX NO. 151151/2021 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

HILDA JUDY LOAIZA, Plaintiff,

- V - TOKYO RAMEN LLC D/8/A KITAKATA RAMEN, G&L REALTY DELAWARE LLC Defendant. ------------------------------------------------------------X INDEX NO. 151151/2021 MOTION DATE 07/20/2024 MOTION SEQ. NO. 001 DECISION + ORDER ON MOTION

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 summaryjudgment 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 ofthe incident, the premises were ownedby 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. Plaintiffwas heading to the restroom when she fell. Tokyo Ramen now moves for summaryjudgment, arguing that the

151151/2021 LOAIZA, HILDA JUDY vs. TOKYO RAMEN LLC D/B/A Motion No. 001
1 of 4 Page 1 of 4 

### [* 1]NYSCEF DOC. NO. 46 INDEX NO. 151151/2021 RECEIVED NYSCEF: 07/24/2024

staircase whichPlaintifffell downwas open and obvious. It also arguesthatbecause it did not own the premises, it does not owe Plaintiffa duty ofcare 1

. Plaintiffopposes and argues that Tokyo Ramen, as a tenant in possession, owed Plaintiffa duty to maintainthepropertyin a safe condition. Plaintiffalso argues thatTokyo Ramenhas failed to make a showing that the stairs were not dangerous, and points to issues offact, including the
narrowness ofthe stairway, the abrupt stairway opening, andthe improperposition ofthe handrail. Plaintiffalsoproduced anexpertaffidavitfrom Stanley Fein, P.E. whotestifiedthatthenarrowness 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 ofthe 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 Plaintifffell, his opinion should be rejected as speculative. II. Discussion "Summaryjudgment is a drastic remedy, to be granted only where the moving party has tendered sufficient evidence to demonstrate the absence ofany material issues offact." (Vega v Restani Const. Corp., 18 NY3d 499, 503 [2012]). The moving party's "burden is a heavy one and
on a motion for summaryjudgment, facts must be viewed in the light most favorable to the nonmoving party." (Jacobsen v New York City Health andHasps. 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, sufficientto establishthe existence ofmaterial issues offact

1 Although not requested in their notice ofmotion, Tokyo Ramen also makes arguments for the dismissal ofG&L's crossclaims asserted against Tokyo Ramen. There is no opposition to Tokyo Ramen's arguments for dismissal ofthe crossclaims and therefore they are granted.

151151/2021 LOAIZA, HILDA JUDY vs. TOKYO RAMEN LLC D/B/A Motion No. 001
2 of 4 Page 2 of 4 

### [* 2]NYSCEF DOC. NO. 46 INDEX NO. 151151/2021 RECEIVED NYSCEF: 07/24/2024

which require a trial. See e.g., Zuckerman v City ofNew 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 summaryjudgment (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 ofMr. Fein, the Court finds there are triable issues offact whichpreclude granting Tokyo Ramen summaryjudgment. Whether a condition is open and obvious is generally ajury 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, Plaintiffwas 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 oflaw, that the staircase was open and obvious (see also Burgdoerfer v CLKIHP 90 Merrick LLC, 170 AD3d 427 [1st Dept 2019]; Brown v Carda CLAtlantic, 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 Plaintiffa 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 ofingress and egress (Nyambuu v Whole Foods Market Group, Inc., 191 AD3d 580 [1st Dept 2021]; Han Bin Hu vBravo 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 547 [1st Dept 2015]). Therefore, based on the record before the Court, summaryjudgmentdismissing PlaintiffsComplaint againstTokyo Ramen is inappropriate.

151151/2021 LOAIZA, HILDA JUDY vs. TOKYO RAMEN LLC D/B/A Motion No. 001
3 of 4 Page 3 of4 

### [* 3]NYSCEF D O

C. NO. 46
Accordingly, it is hereby, INDEX NO . 151151/2021 RECEIVED NYSCEF: 07/ 24/ 2024

ORDERED that Defendant Tokyo Ramen's motion for summaryjudgment 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 summaryjudgment is otherwise denied; and it is further ORDERED that within ten days ofentry, counsel for Plaintiff shall serve a copy ofthis Decision and Order, with notice ofentry, on all parties viaNYSCEF; and it is further ORDERED that the Clerk ofthe Court is directed to enterjudgment accordingly. This constitutes the Decision and Order ofthe Court.
7/24/2024 DATE CHECK ONE:
APPLICATION: CHECK IF APPROPRIATE:

# ~ CASE DISPOSED GRANTED**□** DENIED SETTLE ORDER INCLUDES TRANSFER/REASSIGN

151151/2021 LOAIZA, HILDA JUDY vs. TOKYO RAMEN LLC D/8/A Motion No. 001
4 o f 4 HON. MA~Y V. ROSADO, J.S.C. NON-FINAL DISPOSITION GRANTED IN PART SUBMIT ORDER FIDUCIARY APPOINTMENT

### □ OTHER**□** REFERENCE

Page 4 of4 

### [* 4]