Brown v. City Sam Restaurants, Inc.

246 A.D.2d 301, 666 N.Y.S.2d 409, 1998 N.Y. App. Div. LEXIS 23

Opinion

Order, Supreme Court, Bronx County (Howard Silver, J.), entered December 2, 1996, which, in an action for personal injuries allegedly caused by defendant restaurant’s negligence in serving contaminated food, denied plaintiffs motion for leave to amend the complaint to add causes action for breach of implied warranty of fitness and strict products liability, and granted defendant’s cross motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

We agree with the motion court that it is mere speculation to attribute plaintiffs 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 AD2d 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.