Summary
declining summary judgment in a food poisoning case where plaintiff's expert, a Ph.D. in toxicology, had "presented evidentiary proof in admissible form raising an issue of fact whether [defendant] served decedent unwholesome food that caused his fatal illness"
Summary of this case from Petitt v. Celebrity Cruises, Inc.Opinion
February 2, 1996
Appeal from the Supreme Court, Erie County, Flaherty, J.
Present — Denman, P.J., Pine, Wesley, Balio and Boehm, JJ.
Order unanimously affirmed with costs. Memorandum: Although defendant Tony Rome's, Inc., met its initial burden of establishing entitlement to judgment as a matter of law, plaintiff submitted evidentiary proof in admissible form raising an issue of fact whether Tony Rome's served decedent unwholesome food that caused his fatal illness (see, Zuckerman v. City of New York, 49 N.Y.2d 557, 562). Contrary to the contention of Tony Rome's, the opinion of plaintiff's medical expert concerning the incubation period for decedent's illness does not constitute a formal judicial admission (see, Richardson, Evidence § 216 [Prince 10th ed]; cf., Russell v. Gaines, 209 A.D.2d 939). Plaintiff's other expert, who has a Ph.D. in toxicology, is qualified to render an opinion on the issue of causation (see generally, Matott v. Ward, 48 N.Y.2d 455, 459-462), and his opinion was based upon established facts relevant to the controversy (see, Hugelmaier v. Town of Sweden, 144 A.D.2d 934, lv denied and dismissed 74 N.Y.2d 699).