The 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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Motion No. 001
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INDEX NO. 151151/2021
NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 07/24/2024
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.
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Motion No. 001
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NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 07/24/2024
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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Motion No. 001
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INDEX NO . 151151/2021
NYSCEF DOC . NO. 46 RECEIVED NYSCEF: 07 / 24 / 2024
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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Motion No. 001
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