### De Paz v 4221 Broadway Owner LLC 2024 NY Slip Op 30931(U) March 20, 2024 Supreme Court, New York County Docket Number: Index No. 159720/2019 Judge: Lisa S. Headley 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.

### FILED: NEW YORK COUNTY CLERK 03/20/2024 04:34 PM INDEX NO. 159720/2019 NYSCEF DOC. NO. 86 RECEIVED NYSCEF: 03/20/2024

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### SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. LISA S. HEADLEY

JOSE DE PAZ, Plaintiff,

- V - .Justice ·-----X

4221 BROADWAY OWNER LLC,TIERRA Y MAR RESTAURANT INC. Defendant. -----X PART 28M ----~-----'---------

INDEX NO. 159720/2019

DECISION AND ORDER AFTER INQUEST



### In the Decision and Order issued by Justice David Cohen onNovember 2, 2020, the Court granted plaintiffJose De Paz's ("plaintiff')motion for a defaultjudgmentagainst defendant Tierra Y Mar Restaurant Inc. ("Tierra Y Mar") on the issue ofliability. (NYSCEF Doc No 26). 

### In the Decision and Order issued by Justice David Cohen dated April 28, 2022, the Court granted defendant 4221 Broadway Owner LLC's ("4221 Broadway") motion for summaryjudgment, and. dismissed the complaint against 4221 Broadway, only, and then directed that thedaims against defendant 4221 Broadway be severed, and the balance ofthe action, as asserted against Tierra Y Mar to continue. (NYSCEF Doc No 63). 

### Upon appeal, the decision dated April 28, 2022, was unanimously affirmed by the Appellate Division, First Department on February 23, 2023. (NYSCEFDoc No 80). 

### On July 25, 2023, this Court held an inquest for the assessment ofplaintiffs damages as againstthe soleremainingdefendantTierraYMar. Based.ontheevidence submittedattheinquest, the Court determines thatplaintiffis entitledto a judgmentinhis favor as against defendantTierra Y MarRestaurant, Inc. in the amount of$175,000.00, for past and future pain and ~uffering.



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### FILED: NEW YORK COUNTY CLERK 03/20/2024 04:34 PM INDEX NO. 159720/2019 NYSCEF DOC. NO. 86 RECEIVED NYSCEF: 03/20/2024

2 of 5 Plaintiff's counsel demonstrated that reasonable efforts were made to notify defendant Tierra Y Mar ofthe inquest date. Defendant Tierra Y Mar was served with the court's previous orders, including the order granting the default judgment and the court notified the defendant Tierra Y Mar ofthe scheduled inquest date. Plaintiffwas the sole witness to testify in-person at the inquest. Plaintiffintroduced into evidence Plaintiff'sExhibit 1, the ambulance callreport; Plaintiff'sExhibit2, the emergency room records from Mount Sinai Hospital from the day ofthe incident onMay 31, 2019, through June 1, 2019; Plaintiff's Exhibit 3, the PMNR evaluations from Mid-Atlantic Medical PC by Dr. Luba Karlin; and Plaintiff's Exhibit 4, physical therapy SOAP notes for Mr. De Paz. Plaintifftestified that he is 83 years old. Plaintifftestified in sum and substance that on May 31, 2019, while walking on the sidewalk with his son, he fell down the basement stairs ofthe
l restaurant, Tierra Y Mar, which is located at 179th Street and Broadway in New York, N.Y., between 12:00 p.m. and 1:00 p.m. Plaintifftestified thatjust before he fell, he was showing his
son pictures offood and said to his son "Look, I knowyou have not had this in Cuba, I came here in 1971, so now I'm going to buy this for you." Plaintifffurther testified that at the moment he
was about to move, he fell down the stairs and there was a hole which was about a foot and a half deep, and thatthere was no safety or indicators ofany kind to alert him ofthe hole. Plaintifftestified that when he fell onto the cement floor ofthe stairs, he struck the right side ofhis body. Plaintifffurther testified that he fell down about 8 to IO steps, and his whole body kepttwisting as he was going down. Plaintifftestified that when he first landed at the bottom ofthe stairs, the first spot that was hit was his left shoulder. After the fall, plaintifftestified that his son and other people helped to lift him up, and then his son called the ambulance. Plaintiff testified that he was taken to Mount Sinai h<;>spital for treatm_ent because he was in too much pain



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### FILED: NEW YORK COUNTY CLERK 03/20/2024 04:34 PM INDEX NO. 159720/2019 NYSCEF DOC. NO. 86 RECEIVED NYSCEF: 03/20/2024

3 of 5 in his whole body. In addition, plaintifftestified that he was already 80 years old at the time of the accident. The plaintifffurther testified that he was taken to Mount Sinai hospital's emergency room where he stayed the entire night. Plaintifftestified that he complained ofpain in his whole body, he could hardly speak and he was dizzy. The plaintiff testified that upon discharge from the emergency room, he was not experiencing so muchpainbecause he was given medicationto relax him. The plaintifftestified that he was given Ibuprofen for the pain, and he has been taking the Ibuprofen for four years because the pain has not subsided. He further testified that he went to therapy two days a week, where a heat pack and an electric "thing" was applied to his back. Plaintiffalso testified that while undergoing physical therapy, an orthopedic doctor spoke to himabout doing surgery near his left shoulder. Theplaintifftestifiedthat he respondedby saying he would speak to his general medical doctor, Dr. Juan Alba, who told him "You'retoo old. Don't go for surgery yet." Plaintiffalso testified that Dr. Albatold him to "justdo the best he could and take medication." Plaintifffurther testified that Dr. Alba did not recommend him to do surgery. When asked by counsel if he had ever injured his shoulder in any manner, plaintiff answered, "he had never experienced such a strong thing." When asked after this accident and to the current date how would you characterize the pain in your left shoulder, plaintiffanswered, that he "sometimes cannotmove his shoulderwhen he is going to shower andthe home attendant needs to help him with showering. " He also testified that he feels pain in his shoulder and in his back and neck. Plaintifftestified tpathe never hadpaininhis neck orhis lowe~ backprior to the accident. Plaintifftestified that it hurts sometimes when he moves his head, and for example, he is inpain when he watches television and turns his head. As to his lowerback, theplaintifftestified thathe



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### FILED: NEW YORK COUNTY CLERK 03/20/2024 04:34 PM INDEX NO. 159720/2019 NYSCEF DOC. NO. 86 RECEIVED NYSCEF: 03/20/2024

4 of 5 feels pain once in a while, and when he feels the pain, he takes a pill for pain, whichprovides him with relief. The plaintifftestified that since the accident, the home attendant does everything for him, including, running all ofthe errands, and cleaning his home. The plaintiffalso testified that ever since the accident, he uses a canebecause he does not have goodbalance, and sometimesthe home attendant has to hold his arm. Theplaintifffurther testified that he uses a sling for his left arm and the sling allows his arm to test. Plaintifftestified that without the sling, his left arm would hurt
more while he walks. The plaintifftestified that prior to the accident, he would take a stroll on Broadway in his neighborhood and he would also visit Yankee Stadium. The plaintiff testified that after the accident, everything has changed because he does not feel well, and he is old and feels that his body is very tired. The plaintiffalso testified that since the accident, he has not visited Yankee Stadium, he has notwalked, nortaken a stroll in his neighborhood. Plaintifftestifiedthat he spends most ofthe time at home. In summation, plaintiff's counsel asked the court to consider Mr. De Paz's medical record and the plaintiff's testimony, with respect to past pain and suffering from the date ofthe accident, May 31, 2019, to present, July of2023. Plaintiffasked the Court for an award of$150,000.00 to be issued against defendant Tierra Y Mar Restaurant, Inc. In addition, counsel asked that based upon plaintiff's current age of 83 at the time ofthe inquest, he should be awarded an additional $25,000.00 for future pain and suffering. Based on the evidence presented and the testimony ofthe plaintiff, the Court finds that plaintiff's testimony -was credible, and the plaintiff has demonstrated his entitlement to



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### FILED: NEW YORK COUNTY CLERK 03/20/2024 04:34 PM INDEX NO. 159720/2019 NYSCEF DOC. NO. 86 RECEIVED NYSCEF: 03/20/2024

5 of 5 $175,000.00 for past and future pain and suffering. It should be noted that the plaintiffdid not make a claim for lost wages or economic losses. As such, it is hereby 

### ORDERED thatafterthe inquest heldbefore the July 25, 2023, the Courtawards plaintiff, Jose De Paz, $175,000.00 in damages as against defendant Tierra Y Mar Restaurant, Inc.; and it is further 

### ORDERED that tlie court directs the Clerk of the Court to enter judgment in favor of plaintiff, Jose De Paz, as against defendant Tierra Y Mar Restaurant, Inc., in the amount of $175,000.00. This constitutes the Decision and Order ofthe Court after Inquest.

3/20/2024

DATE CHECK ONE:
APPLICATION: CHECK IF APPROPRIATE: CASE DISPOSED GRANTED**□** DENIED SETTLE ORDER INCLUDES TRANSFER/REASSIGN

# ~ NON-FINAL. DISPOSITION GRANTED IN PART SUBMIT ORDER FIDUCIARY APPOINTMENT

### □ OTHER**□** REFERENCE



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