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Brown v. City Sam Restaurants, Inc.

Appellate Division of the Supreme Court of New York, First Department
Jan 6, 1998
246 A.D.2d 301 (N.Y. App. Div. 1998)

Summary

In Brown v. City Sam Restaurants, Inc., 666 N.Y.S.2d 409 (1st Dept. 1998), the First Department held that it was mere speculation to attribute plaintiff's flu-like symptoms to his consumption of unwholesome or contaminated lobster at defendant's restaurant, where it was undisputed that plaintiff had eaten other foods earlier that day, that he had a known food allergy to some shellfish, that no one else in his dinner party became sick, and where his own medical evidence was inconclusive as to the cause of his symptoms.

Summary of this case from Arencibia v. Joe's Place, Inc.

Opinion

January 6, 1998

Appeal from the Supreme Court, Bronx County (Howard Silver, J.).


We agree with the motion court that it is mere speculation to attribute plaintiff's flu-like symptoms to his consumption of unwholesome or contaminated lobster at defendant's restaurant, where it is undisputed that plaintiff had eaten other foods earlier that day, that he had a known food allergy to some shellfish, that no one else in his dinner party became sick, and where his own medical evidence was inconclusive as to the cause of his symptoms ( see, Valenti v. Great Atl. Pac. Tea Co., 207 A.D.2d 340; Pendola v. M. S. Cafeteria, 206 Misc. 595). Leave to amend the complaint was properly denied on the same ground, namely, that plaintiff would not be able to prove that his symptoms were caused by his ingestion of contaminated lobster, such being an essential element to both proposed causes of action.

Concur — Sullivan, J.P., Rosenberger, Wallach, Rubin and Tom, JJ.


Summaries of

Brown v. City Sam Restaurants, Inc.

Appellate Division of the Supreme Court of New York, First Department
Jan 6, 1998
246 A.D.2d 301 (N.Y. App. Div. 1998)

In Brown v. City Sam Restaurants, Inc., 666 N.Y.S.2d 409 (1st Dept. 1998), the First Department held that it was mere speculation to attribute plaintiff's flu-like symptoms to his consumption of unwholesome or contaminated lobster at defendant's restaurant, where it was undisputed that plaintiff had eaten other foods earlier that day, that he had a known food allergy to some shellfish, that no one else in his dinner party became sick, and where his own medical evidence was inconclusive as to the cause of his symptoms.

Summary of this case from Arencibia v. Joe's Place, Inc.
Case details for

Brown v. City Sam Restaurants, Inc.

Case Details

Full title:JOHN H. BROWN et al., Appellants, v. CITY SAM RESTAURANTS, INC.…

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Jan 6, 1998

Citations

246 A.D.2d 301 (N.Y. App. Div. 1998)
666 N.Y.S.2d 409

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