Yong Jun li v A.Z.N. Realty LLC

Annotate this Case

Download PDF

Yong Jun li v A.Z.N. Realty LLC 2019 NY Slip Op 33780(U) December 24, 2019 Supreme Court, New York County Docket Number: 160401/2015 Judge: Lucy Billings 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: 1] NEW YORK COUNTY CLERK 01/03/2020 12:22 PM NYSCEF DOC. NO. 107 INDEX NO. 160401/2015 RECEIVED NYSCEF: 01/03/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 46 --------------------------~-----------x YONG JUN LI, Index No. 160401/2015 Plaintiff - against DECISION AND ORDER A.Z.N. REALTY LLC; Defendant --------------------------------------x LUCY BILLINGS, J.S.C .. : Plaintiff, an employee of Cafe China restaurant at 13 East . 37th Street, New York County, sues defendant owner of the building for injuries sustained June 14, 2015, when plaintiff fell as he ascended the restaurant's interior staircase from the ba~ement to the ground floor. He testified at his deposition that, when he stepped on the third stair from the bottom, the marble tread broke and detached from and slid off the staircase. I. DEFENDANT'S MOTION FOR SUMMARY JUDGMENT Defendant moves for summary judgment dismissing the complaint based on defendant's contention that its lease with its tenant Cafe China imposed on _the tenant the duty to repair.any unsafe or defective condition, even a structural the staircase, but defendant support of the motion. A.D.3d 401, 403 n.2 f~ils con~ition, of to authenticate the lease in B & H Florida Notes LLC v. Ashkenazi, 149 (1st Dep't 2017); AO Asset Mgt. LLC v. Levine., 128 A.D.3d 620, 621 (1st Dep't 2015); IRB-Brasil Resseguros S:A. v. Poriobello Intl. Ltd, 84 A.D.jd 637, 638 (1st livazn1219 1 2 of 7 [*FILED: 2] NEW YORK COUNTY CLERK 01/03/2020 12:22 PM NYSCEF DOC. NO. 107 RECEIVED NYSCEF: 01/03/2020 Dep't 2011); Bermudez v. Ruiz, 185 A.D.2d 2i2, 214 1992). INDEX NO. 160401/2015 (1st pep't Although Xian Zhang testified at his deposition that he and his wife signed a lease for the restaurant space on Cafe China's behalf, the lease ·was not presented to him at his deposition. Even assuming that the lease obligated Cafe China to effect structural repairs of the stairs, defendant concedes that the lease entitled defendant to re-enter the leased premises. Therefore, if the condition of the stairs constitut~d a structural hazard or defect that violated a statutory safety provision, the owner of the premises remains liable for the condition based on actual or constructive notice of the condition. Guzman v. Haven Plaza . Hous. Dev. Fund Co., 69 N.Y.2d . 559, 566-67 (1987); Marie D. v. Roman Cathoic Church of the Sacred Heart, 161 A.D.3d 448; 448 (1st Dep't 2018); Yuying Qiu v. J&J Grocery & Deli Corp., 115 A.D.3d 627, 627 (1st Dep't 2014); Ouing Sui Li v. 37-65 LLC, 114 A.D.3d 538, 539 (1st Dep't 2014). Defendant building owner is considered on notice of a building condition in violation of a statut.e. Hakim v. 65 Eighth Ave., LLC, 42 A.D.3d 374, 374 (1st Dep't 2007) NY Corp., 35 A.D.3d 234, ~35 i Pirraglia v. CCC Realty (1st Dep't 2006); Lopez v. 1372 Shakespeare Ave. Hous. Dev. Fund Corp., 299 A.D.2d 230, 231 (1st Dep't 2002). II. PLAINTIFF'S CROSS-MOTION TO AMEND HIS COMPLAINT AND BILL OF PARTICULARS Plaintiff cross-moves to amend his complaint and bill of particulars to claim defendant's violations of New York City livazn1219 2 3 of 7 [*FILED: 3] NEW YORK COUNTY CLERK 01/03/2020 12:22 PM NYSCEF DOC. NO. 107 INDEX NO. 160401/2015 RECEIVED NYSCEF: 01/03/2020 Building Code § 1001.3, which requires that "means of egress shall be maintained in accordance with the New York City Fire Code," and Fire Code §§ 1027.1 and 1027.3. Fire Code § 1027.1 requires that "the means of egress for buildings thereof, shall be maintained." required means of ,egress . . or parts Section 1027.3 requires that "all shall be continuously ma_intained free from obstructions and impediments to immediate use." Violations of New York City Building and Fire Code provisions qualify as violations of statutory safety provisions for which the owner of the premises remains liable. Lopez v. 1372 Shakespeare Ave. Hous. Dev. Fund Corp., 299 A.D.2d at 231. See Marie D. v. Roman Cathoic Church of the Sacred Heart, 161 A.D.3d at 448; Levine v. 425 Madison Assoc., 138 A.D.3d 606, 607 {1st Dep't 2016) ;·Drotar v. 60 Sweet Thing, Inc., 106 A.D.3d 426, 427 (1st Dep't 2013); Heim v. Trustees of Columbia Univ. in the City• of N.Y., 81 A.D.3d 507, 507 (1st Dep't 2011). Plaintiff maintains that defendant was well aware of the stairs' condition that impeded their use. He described the stairs' treads as "mostly cracked" ·with visible dirt embedded in the cracks. Zhang confirmed upon repeated questioning that, from the commencement of the lease in 2011 until plaintiff's injury, defendant's owner and the owner's son who assisted in managing the.building inspected the leased premises once or twice per year. The owner and his son both had used the stairs that broke under plaintiff, because the stairs led to Zhang's office, and thus had observed the cracked, worn, and insecure treads, which livazn1219 3 4 of 7 [*FILED: 4] NEW YORK COUNTY CLERK 01/03/2020 12:22 PM NYSCEF DOC. NO. 107 INDEX NO. 160401/2015 RECEIVED NYSCEF: 01/03/2020 posed an impediment to their use. Leave to amend pleadings is to be freely granted unless it would surprise or otherwise prejudice the opposing party. C.P.L.R. § 3025(b); Davis v. South Nassau Communities Hosp., 26 I N.Y.3d 563, 580 (2015); Kimso Apts., LLC v. Gandhi, 24 N.Y.3d 403, 411 (2014); Global Liberty Ins. Co. v. Tyrell, 172 A.D.3d 499, 500 (1st Dep't 2019); Y.A. v. Conair Corp., 154 A.D.3d 611, 612 (1st Dep't 2017). Defendant does not maintain that the court must deny plaintiff's proposed amendments because they lack merit, see Davis v. South Nassau Communities Hosp., 26 N.Y.3d at 580; Thomas Crimmins Contr. Co. v. City' of New York, 74 N.Y.2d 166, 170 (1989); Reyes v. BSP Realty Corp., 171 A.D.3d 504, 504 (1st Dep't 2019); Y.A. v. Conair Corp., 154 A;D.3d at 612, but ~, maintains that his delay in amending his complaint and bill of particulars has prejudiced defendant because the amendments amount to a new theory of liability, and defendant moved for summary judgment b._ased on the originally claimed theories. Defendant must demonstrate actual prejudice to warrant the denial of permission to amend the complaint or bill of particulars; defendant's speculation as to potential prejudice is insufficient. Eshaghian v. Eshaghian, 170 A.D.3d 416, 416 (1st Dep't 2019); Flowers v. '73rd Townhouse LLC, 149 A.D.3d 420, 421 (1st Dep't 2017); Spitzer v. Schussel, 48 A.D.3d 233, 234 (1st Dep't 2008). Unquestionably, plaintiff's original complaint and bill of particulars claimed defendant's failure to maintain the stairs according to New York City codes. livaznl219 4 5 of 7 Notably, defendant [*FILED: 5] NEW YORK COUNTY CLERK 01/03/2020 12:22 PM NYSCEF DOC. NO. 107 INDEX NO. 160401/2015 RECEIVED NYSCEF: 01/03/2020 fails to specify what, given plaintiff's proposed amendments, it now would claim as its defense that it has not already claimed. The Building and Fire Code violations that plaintiff now seeks to add stem from the same conditions and conduct that formed the basis of his original claims. Triese added violations do not require defendant to conduct any further investigation or gather. further evidence, mitigating any concerns about stale evidence. Plaintiff's proposed amendments, at most, extrapolate on allegations in the original complaint, of which defendant received notice over four years ago, havin~ given defendant ample time to investigate and ga~her original and new claims soon evidence relating to plaintiff's ~fter the alleged occurrence. Angeliades, Inc. v. Hill Intl., Inc., 150 A.D.3d 607, 608 (1st Dep't 2017); Wadsworth Condos, LLC v. Dollinger Gonski & Grossman, 114 A.D.3d 487, 487 (1st Dep't 2014); Alarcon v. White Plains Hous. Dev. Fund Corp., 100 A.D.3d 431, 432 (1st Dep't 2012). If in fact defendant is prejudiced by being deprived of the opportunity to move for summary judgment dismissing plaintiff's new claims, defendant may seek to justify a second motion for summary judgment, Maggio v. 24 W. 57 APF, LLC, 134 A.D.3d 621, 626 (1st Dep't 2015); Healthcare I.Q., LLC v. Tsai Chung Chao, 118 A.D.3d 98, 103 (1st Dep't 2014), and excuse the motion's lateness on that basis. C.P.L.R. § 3212(a) Rutkovsky, 153_A.D.3d 450, 453-54 (1st Dep't 2017); Kase v. H.E.E. Co., 95 A.D.3d 568, 569 (1st Dep't 2012) i i. Lewis v. Butt v. Bovis Lend Lease LMB, Inc., 47'A.D.3d 338, 339-40 (1st Dep't· 2007); livazn1219 5 6 of 7 [*FILED: 6] NEW YORK COUNTY CLERK 01/03/2020 12:22 PM NYSCEF DOC. NO. 107 ~' -. ; INDEX NO. 160401/2015 RECEIVED NYSCEF: 01/03/2020 ) Mayer v. New York City Tr. Auth., 39 A.D.3d 349, 349 (1st Dep't 2007). III. CONCLUSION · For all the reasons explained above, the court grants plaintiff's cross-motion to amend his complaint and bill of -, particulars in_ the form attached as Exhibits G and H to his cross-motion. C.P.L.R. § 3025(b). Based on these new claims and the evidence in.support of and in opposition to defendant's motion for summary judgment, the court denies.the motion. C.P.L:R. § 3212(b). Defendant's supporting evidence £ails to show that its lease to Cafe China obligated the tenant to effect structural repairs of the sta~rs that broke under plaintiff. '1 Even if the lease so provided, against plaintiff;s new claims defendant's evidence, which includes plaintiff's and Zhang's testimony, raises a factual issue regarding its constructive notice that the cracked, worn, insecure treads on the stairs posed an impediment to their use, in violation of New York City Building Code DATED: § 1001, 3• and Fire Code §§ 1027 .1 and 1027. 3. December 24, 2019 LUCY BILLINGS, J.S.C. &-UCY J:Sm..1.tNG. !. :'. ~- livaznl219 6 _) 7 of 7

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.