Vitiello v. Captain Bill's Restaurant

Appellate Division of the Supreme Court of New York

Vitiello v. Captain Bill's Restaurant

191 A.D.2d 429, 594 N.Y.S.2d 295, 20 U.C.C. Rep. Serv. 2d (West) 894, 1993 N.Y. App. Div. LEXIS 1812

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

DecidedMarch 1, 1993

StatusPublished

Cited by5 cases

This text of 191 A.D.2d 429 (Vitiello v. Captain Bill's Restaurant) 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.

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Vitiello v. Captain Bill's Restaurant, 191 A.D.2d 429, 594 N.Y.S.2d 295, 20 U.C.C. Rep. Serv. 2d (West) 894, 1993 N.Y. App. Div. LEXIS 1812 (N.Y. Ct. App. 1993).

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Opinion

—In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Kings County (Hurowitz, J.), dated January 7, 1991, which denied its motion for summary judgment dismissing the complaint and all cross claims against it.

Ordered that the order is reversed, on the law, with costs, the motion is granted, and the complaint and any cross claims against the defendant are dismissed.

The evidence submitted in support of the defendant’s motion was sufficient to warrant the granting of summary judgment (see, Zuckerman v City of New York, 49 NY2d 557). The plaintiff asserted that she was injured when she ate fish containing a bone at the defendant restaurant. The "reasonable expectation” doctrine, as applied to an action to recover damages for common-law negligence, requires a restaurant owner to use ordinary care to remove from the food as served, such harmful substances as the consumer would not ordinarily anticipate (see, Stark v Chock Full O'Nuts, 77 Misc 2d 553). However, despite the waitress’s statement that the fish had been fileted, the injured plaintiff had no right to expect a perfect piece of fish. "Everyone * * * knows that tiny bones may remain in even the best filets of fish” (Yong Cha Hong v Marriott Corp., 656 F Supp 445, 449). Bracken, J. P., Lawrence, Miller, Copertino and Santucci, JJ., concur.

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—In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Kings County (Hurowitz, J.), dated January 7, 1991, which denied its motion for summary judgment dismissing the complaint and all cross claims against it.

Ordered that the order is reversed, on the law, with costs, the motion is granted, and the complaint and any cross claims against the defendant are dismissed.

The evidence submitted in support of the defendant’s motion was sufficient to warrant the granting of summary judgment (see, Zuckerman v City of New York, 49 NY2d 557). The plaintiff asserted that she was injured when she ate fish containing a bone at the defendant restaurant. The "reasonable expectation” doctrine, as applied to an action to recover damages for common-law negligence, requires a restaurant owner to use ordinary care to remove from the food as served, such harmful substances as the consumer would not ordinarily anticipate (see, Stark v Chock Full O'Nuts, 77 Misc 2d 553). However, despite the waitress’s statement that the fish had been fileted, the injured plaintiff had no right to expect a perfect piece of fish. "Everyone * * * knows that tiny bones may remain in even the best filets of fish” (Yong Cha Hong v Marriott Corp., 656 F Supp 445, 449). Bracken, J. P., Lawrence, Miller, Copertino and Santucci, JJ., concur.

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191 A.D.2d 429, 594 N.Y.S.2d 295, 20 U.C.C. Rep. Serv. 2d (West) 894, 1993 N.Y. App. Div. LEXIS 1812, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vitiello-v-captain-bills-restaurant-nyappdiv-1993.

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