Amiano v. Greenwich Vil. Fish Co., Inc.

2017 NY Slip Op 4544, 151 A.D.3d 484, 53 N.Y.S.3d 531

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 8, 2017
• Docket: 4192 150361/13
• Status: Published

Opinion

Order, Supreme Court, New York County (Manuel J. Mendez, J.), entered September 12, 2016, which, insofar as appealed from, denied defendants’ motion for summary judgment insofar as it sought dismissal of the negligence cause of action against defendants-appellants, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment dismissing the complaint.

Plaintiff seeks damages for injuries sustained when she choked on a fish bone while eating a fillet of flounder at defendants-appellants’ restaurant. Plaintiff’s negligence claim should have been dismissed pursuant to the “reasonable expectation” doctrine, as the nearly one-inch bone on which plaintiff choked was not a “harmful substance [ ]” that a consumer “would not ordinarily anticipate” (Vitiello v Captain Bill’s Rest., 191 AD2d 429, 429 [2d Dept 1993]; see also Mathews v Maysville Seafoods, Inc., 76 Ohio App 3d 624, 627, 602 NE2d 764, 765-766 [Ct App 1991]; Ex parte Morrison’s Cafeteria of Montgomery, Inc., 431 So 2d 975, 979 [Ala Sup Ct 1983]).

Concur—Tom, J.P., Sweeny, Andrias, Moskowitz and Manzanet-Daniels, JJ.