Sorrentino v. Fireman

Appellate Division of the Supreme Court of New York

Sorrentino v. Fireman

298 A.D.2d 333, 750 N.Y.S.2d 268, 2002 N.Y. App. Div. LEXIS 10411

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 31, 2002

StatusPublished

Cited by1 cases

This text of 298 A.D.2d 333 (Sorrentino v. Fireman) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Sorrentino v. Fireman, 298 A.D.2d 333, 750 N.Y.S.2d 268, 2002 N.Y. App. Div. LEXIS 10411 (N.Y. Ct. App. 2002).

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Opinion

Order, Supreme Court, New York County (Marcy Friedman, J.), entered July 12, 2001, which denied appellants’ motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

The court properly found the existence of issues of fact sufficient to defeat the summary judgment motion. Plaintiffs allege that while plaintiffs and their decedent were dining at appellants’ restaurant, the decedent choked on food, that plaintiffs detrimentally relied on appellants’ employees’ false assurance that they would make a prompt 911 call, and that a lengthy delay in making the call resulted in the decedent’s death.

While no duty is imposed upon a restaurant proprietor or employee to engage in any affirmative action with respect to a choking victim (Public Health Law § 1352-b [4]), appellants’ employees undertook affirmative action in calling 911, and conflicting evidence was presented with respect to the time taken to perform this task, whether plaintiffs detrimentally relied upon assurances by appellants’ employees, and the extent to which any delay was the proximate cause of the decedent’s death (see Heard v City of New York, 82 NY2d 66, 72; Parvi v City of Kingston, 41 NY2d 553, 559). We specifically note that the Sprint report provided evidence indicating a significant delay in placing the call. Concur — Mazzarelli, J.P., Saxe, Ellerin, Lerner and Marlow, JJ.

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Order, Supreme Court, New York County (Marcy Friedman, J.), entered July 12, 2001, which denied appellants’ motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

The court properly found the existence of issues of fact sufficient to defeat the summary judgment motion. Plaintiffs allege that while plaintiffs and their decedent were dining at appellants’ restaurant, the decedent choked on food, that plaintiffs detrimentally relied on appellants’ employees’ false assurance that they would make a prompt 911 call, and that a lengthy delay in making the call resulted in the decedent’s death.

While no duty is imposed upon a restaurant proprietor or employee to engage in any affirmative action with respect to a choking victim (Public Health Law § 1352-b [4]), appellants’ employees undertook affirmative action in calling 911, and conflicting evidence was presented with respect to the time taken to perform this task, whether plaintiffs detrimentally relied upon assurances by appellants’ employees, and the extent to which any delay was the proximate cause of the decedent’s death (see Heard v City of New York, 82 NY2d 66, 72; Parvi v City of Kingston, 41 NY2d 553, 559). We specifically note that the Sprint report provided evidence indicating a significant delay in placing the call. Concur — Mazzarelli, J.P., Saxe, Ellerin, Lerner and Marlow, JJ.

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Bluebook (online)

298 A.D.2d 333, 750 N.Y.S.2d 268, 2002 N.Y. App. Div. LEXIS 10411, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sorrentino-v-fireman-nyappdiv-2002.

Opinion

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