Chen v. Lee

Chen v Lee 2024 NY Slip Op 31969(U) June 5, 2024 Supreme Court, New York County Docket Number: Index No. 158258/2017 Judge: Adam Silvera 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. 158258/2017 NYSCEF DOC. NO. 123 RECEIVED NYSCEF: 06/07/2024

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. ADAM SILVERA PART 40 Justice -------X INDEX NO. 158258/2017 JENNY HU CHEN, MOTION DATE 01/11/2023 Plaintiff, MOTION SEQ. NO. 003 - V -

JAMES KYONGSOP LEE, SANG HEE LEE, CHARLES DECISION + ORDER ON RUTENBERG REAL TY, INC.,YUNJI HAHN, MOTION Defendant. ----------------------------------------------------------------X

JAMES LEE, SANG LEE Third-Party Index No. 595966/2017 Plaintiff,

-against-

YUNJI HAHN

Defendant. -----------------------X

The following e-filed documents, listed by NYSCEF document number (Motion 003) 106, 107, 108, 109, 110,111,112,113,114,115,116,117,118,119,120, 121, 122 were read on this motion to/for DISMISSAL

Upon the foregoing documents, it is ordered that the defendant Yunji Hahn's motion for

summary judgment pursuant to CPLR 3212 is granted for the reasons set forth below.

Plaintiff commenced the instant action on September 14, 2017 for injuries allegedly

sustained on July 8, 2017 when plaintiff was caused to slip and fall while descending a stairway

at 127 Celia Drive, Jericho, New York (the Premises). Defendant Yunji Hahn (Hahn) now moves

for summary judgment pursuant to CPLR 3212 seeking dismissal of the complaint as against her.

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INDEX NO. 158258/2017 NYSCEF DOC. NO. 123 RECEIVED NYSCEF: 06/07/2024

Defendants James Kyongsop Lee and Sang Hee Lee (the Lee Defendants) owned the

Premises and hired defendant Charles Rutenberg Realty, Inc. to find renters for it. See

Affirmation in Support, dated January 11, 2023, • 6. At the time of the incident, defendant Hahn

was a real estate agent associated with defendant Charles Rutenberg Realty and was responsible

for showing the Premises to potential renters. See id. On July 8, 2017, plaintiff Jenny Hu Chen

attended an appointment to see the Premises and alleges that she and her son were instructed by

defendant Hahn to take off their shoes shortly after entering. See Notice of Motion, Exh. D,

Plaintiffs Depo. Tr., p. 24: ln. 19-23, p. 26: ln. 2-7,17-21. Plaintiff removed her shoes, but not

her socks, and alleges that as a result, she slipped and fell down the stairs. See id. at p. 27: ln. 17-

19.

A party moving for summary judgment under CPLR 3212 "must make a prima facie

showing of entitlement to judgment as a matter of law, tendering sufficient evidence to

demonstrate the absence of any material issues of fact." Alvurez v Prospect Hosp .. 68 NY2d 320,

324 (1986). The moving party's failure to make a prima facie showing requires a denial of the

motion, regardless of the sufficiency of the opposing papers. See id. If the moving party meets its

prima facie burden, the burden shifts to the non-moving party to furnish evidence in admissible

form sufficient to raise a material issue of fact. See id

It is well settled that "[l]iability for a dangerous condition on property may only be

predicated upon occupancy, ownership, control or special use of such premises". Uihhs v Port

Auth ofXe,v York, 17 AD3d 252, 254 (1st Dept 2005). In addition, real estate brokers owe no

duty to prospective buyers to make a premises safe where their only connection to the premises

is to show it to prospective buyers. See Eichdbawn v Douglas Elliman. LLC, 52 AD3d 210,210

(1st Dept 2008); see also Knight v Realty USA.com, Inc., 96 AD3d 1443, 1444 (4 th Dept 2012)).

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Here, defendant Hahn essentially argues that she owed no duty to plaintiff to keep the

Premises safe, as she was hired as a real estate broker to show the Premises to prospective

buyers. She states that she was merely following what she believed to be the Lee Defendant's

wishes of having guests remove their shoes shortly after entering the Premises. As a real estate

agent with no connection to the property other than merely showing it to prospective buyers,

defendant Hahn owed no duty to make the Premises safe. See Eichelbaum, 52 AD3d at 210.

Therefore, defendant Hahn has met her prima facie burden on summary judgment.

In opposition, plaintiff argues that defendant Hahn owed a duty of care to prospective

tenants and breached that duty by instructing plaintiff to remove her shoes. Plaintiff further

argues that there is an issue of material fact as to whether defendant Hahn instructed plaintiff and

her son to remove their shoes, such that a jury may find that defendant Hahn launched an

instrument of harm. Defendant Hahn stated in her deposition testimony that she does not

remember asking plaintiff to remove her shoes and that plaintiff removed her shoes on her own

volition per Asian custom. See Notice of Motion, Exh. F, defendant Hahn's Depo. Tr. p. 23: ln.

13, p. 24: ln. 2, ln. 12-16, p. 61: ln. 5-7). Adversely, plaintiff points to defendant Sang Hee Lee's

testimony, in which she states that she did not instruct defendant Hahn to tell anybody coming

into the Premises to remove their shoes. See Notice of Motion, Exh. E, Sang Hee Lee Depo. Tr.

p. 26: ln. 3-7.

Whether or not plaintiff was instructed to remove her shoes is immaterial, as the

Honorable Alexander M. Tisch previously found that argument unavailing in the Decision/Order

dated March 31, 2021, in mot. seq. no. 001 and 002. In such Decision/Order, Judge Tisch held

that there was nothing inherently wrong with the stairs, nor was the Lee Defendants' use of baby

wipes the reason for plaintiffs fall. Furthermore, any danger due to smoothness of the floor

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INDEX NO. 158258/2017 NYSCEF DOC. NO. 123 RECEIVED NYSCEF: 06/07/2024

would have been equally as apparent to defendant Hahn and plaintiff. See Eichelbaum, 52 AD3d

at 210. Thus, defendant Hahn cannot be liable and the motion for summary judgment is granted.

Accordingly, it is hereby

ORDERED that defendant Yunji Hahn's motion for summary judgment pursuant to

CPLR 3212 is granted, and the complaint is dismissed in its entirety as against said defendant,

and it is further

ORDERED that within 30 days of entry, defendant Hahn shall serve a copy of this

Decision and Order upon all parties with Notice of Entry, and it further

ORDERED that the Clerk is directed to enter judgment accordingly.

This constitutes the Decision and Order of the Court.

6/5/2024 DATE ADAM SILVERA, 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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