Opinion
Index No. 150541/2021 Motion Seq. No. 001
02-07-2024
GILAD BESTERMAN, Plaintiff, v. SUSHI FUSSION EXPRESS INC, SUSHI FUSSION LLC, SUSHI FUSSION OF 47TH ST INC, SUSHI FUSSION OF FOREST HILLS INC Defendants.
Unpublished Opinion
MOTION DATE 09/19/2023
PRESENT: HON. PAULA. GOETZ, JUSTICE
DECISION + ORDER ON MOTION
PAUL A. GOETZ, JUDGE
The following e-filed documents, listed by NYSCEF document number (Motion 001) 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 37, 38, 39, 40, 41, 42, 44 were read on this motion to/for SUMMARY JUDGMENT (AFTER JOINDER).
In this action arising out of plaintiff's alleged food poisoning, defendants Sushi Fussion Express Inc, Sushi Fussion LLC, Sushi Fussion of 47th St Inc, and Sushi Fussion of Forest Hills Inc (collectively, Sushi Fussion) move for summary judgment dismissing plaintiffs complaint.
BACKGROUND
Sushi Fussion was plaintiff s "go-to lunch place," being only a short walk from his office (NYSCEF Doc No 29, 20:3-21:11). He often ordered sushi rolls from Sushi Fussion, as well as poke bowls once they were added to the menu, without incident (id., 24:14-25:7).
On March 12, 2019, plaintiff picked up a "Tuna Laguna Poke Bowl" and brought it back to his office as usual (NYSCEF Doc No 1, ¶¶ 11-14). Plaintiff alleges that he "felt perfectly fine and healthy" before eating, but approximately twenty minutes after he began eating, he became ill (id., ¶¶ 15, 17). Plaintiff testified: "I just felt wrong ... my heart felt like it was racing ... I was getting like really hot and bothered. And then . . . my Apple watch gave me an alert that said [I] had an elevated heart rate" (NYSCEF Doc No 29, 26:29-27:8; NYSCEF Doc No 41).
After speaking with his wife, who urged him to seek medical attention, plaintiff left his office for a nearby CityMD (id., 27:9-29:2). Once there, plaintiff experienced vomiting, diarrhea, and continued heart palpitations (id., 28:1-14). According to CityMD records of the visit, he complained of shortness of breath, difficulty breathing, dizziness, and lightheadedness; and was determined to have tachycardia, i.e., a heart rate of over 100 beats per minute (NYSCEF Doc No 32). The doctors performed an EKG, and upon seeing the results, plaintiff was transported to Mount Sinai West Hospital by ambulance (id.; NYSCEF Doc No 29, 28:15-29:2, 30:16-31:5).
At Mount Sinai, plaintiff was taken into a "special cardiac room," where a host of doctors and nurses attended to him, and his heart rate continued to climb (NYSCEF Doc No 29, 32:2-31:7). The hospital records from Mount Sinai note that plaintiff "present[ed] with acute onset sinus tachycardia" and that he "report[ed] SOB and chest discomfort during initial onset of symptoms, but believes these to be 2/2 anxiety given the situation" (NYSCEF Doc No 33). Plaintiff recalls that the doctors and nurses continued to monitor him overnight, and that his heart rate finally dropped below 100 beats per minute at around 1:00 a.m. on March 13, 2019 (NYSCEF Doc No 29, 36:3-11). Later that morning, plaintiff was released from the hospital and advised to see a cardiologist within 72 hours (id., 37:7-16).
Plaintiff visited Associates in Cardiovascular Disease the following day, March 14, 2019, where he was diagnosed with tachycardia and "anaphylactic shock due to food additive" (NYSCEF Doc No 34). The cardiologist, Dr. Steven Sheris, specifically noted: "This patient's clinical presentation is consistent with a histamine reaction. He consumed raw fish and within 20 min had characteristic nausea, flushing, headache, and diarrhea . . . His metabolic profile was otherwise normal" (id.). In an affirmation executed on July 21, 2020, however, Dr. Sheris stated: "It is my opinion to a reasonable degree of medical certainty that the symptoms experienced by [plaintiff] were caused by scombroid poisoning from the tuna he ingested approximately 20 minutes prior to the onset of his symptoms" (NYSCEF Doc No 40, ¶ 14). He defines scombroid poisoning as "a type of food intoxication caused by the consumption of scombroid and scombroid-like marine fish species that have begun to spoil and grow bacteria containing high histamine levels due to improper processing or storage," and indicates that tuna is commonly linked to that condition (id., ¶¶ 10-11).
Plaintiff thus claims that his cardiac episode was caused by the consumption of scombroid via the tuna served by Sushi Fussion. Sushi Fussion, however, posits that plaintiff s incident was instead caused by a histamine reaction unrelated to anything wrong with the food. In support of this theory, it provides the analysis of medical expert Dr. Herbert Insel, who states "with a reasonable degree of medical certainty" that plaintiffs tachycardia "was due to an allergic reaction (histamine release) to a component of the food he was eating at the time," and that "[a]nxiety may have played a role" in his increased heart rate (NYSCEF Doc No 31). Sushi Fussion also produced Levi Katanov, one of its part-owners, for a deposition in which he attested to the restaurant's safe processing and storage practices (NYSCEF Doc No 30). Katanov testified that Sushi Fussion maintains strict procedures for all employees to ensure that the fish is fresh when received from the supplier (id., 30:4-31:12); that all food is stored and prepared at the proper temperature (id., 48:15-50:12, 57:15-58:5); and that there is no cross-contamination between raw and packaged foods (id., 56:14-57:14). He further states that he had never received complaints of the food at Sushi Fussion causing illness before this action (id., 22:6-11).
DISCUSSION
"It is well settled that 'the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact.'" (Pullman v Silverman, 28 N.Y.3d 1060, 1062 [2016], quoting Alvarez v Prospect Hosp., 68 N.Y.2d320, 324 [1986]). Specifically, a defendant seeking summary judgment in a food poisoning case must demonstrate that the food it sold was not contaminated or that any such contamination did not cause the plaintiffs illness (Harris v Morton's Rest. Group, Inc., 146 A.D.3d 477, 478 [1st Dept 2017]; Jaroslawicz v Prestige Caterers, 292 A.D.2d 232, 233 [1st Dept 2002]). "Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers." (Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 [1985] [internal citations omitted]). "Once such a prima facie showing has been made, the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form sufficient to raise material issues of fact which require a trial of the action." (Cabrera v Rodriguez, 72 A.D.3d 553, 553-554 [1st Dept 2010], citing Alvarez, 68 N.Y.2d at 342).
"The court's function on a motion for summary judgment is merely to determine if any triable issues exist, not to determine the merits of any such issues or to assess credibility." (Meridian Mgmt. Corp, v Cristi Cleaning Serv. Corp., 70 A.D.3d 508, 510-511 [1st Dept 2010] [internal citations omitted]). The evidence presented in a summary judgment motion must be examined "in the light most favorable to the non-moving party" (Schmidt v One New' York Plaza Co., 153 A.D.3d 427, 428 [2017], quoting Ortiz v Varsity Holdings, LLC, 18 N.Y.3d 335, 339 [2011]) and bare allegations or conclusory assertions are insufficient to create genuine issues of fact (Rotuba Extruders v Ceppos, 46 N.Y.2d 223, 231 [1978]). If there is any doubt as to the existence of a triable fact, the motion for summary judgment must be denied (id.).
The parties present two conflicting explanations for plaintiff s condition: (1) the tuna used in the poke bowl served to plaintiff was not properly processed or stored, causing bacteria to form, giving plaintiff scombroid poisoning; and (2) some element of the poke bowl, which would be safe for consumption by anyone without an allergy to same, caused plaintiff to go into anaphylactic shock.
Sushi Fussion has not demonstrated, as it must on a motion for summary judgment, that the first explanation is unfounded (Jaroslawicz, 292 A.D.2d at 233; Harris, 146 A.D.3d at 478). Nor has the evidence it submitted rendered the first explanation "sufficiently 'remote' or 'technical' to enable the jury to reach its verdict based not upon speculation, but upon the logical inferences to be drawn from the evidence" (Gayle v City of New York, 92 N.Y.2d 936, 937 [1998]). Indeed, plaintiffs symptoms are consistent with anaphylaxis and with scombroid poisoning, and the presence of scombroid in this instance would explain why plaintiff had an adverse reaction to this meal, but never to any other meal he consumed from Sushi Fussion. Furthermore, though Dr. Insel stated "with a reasonable degree of medical certainty" that plaintiff suffered an allergic reaction (NYSCEF Doc No 31), Dr. Sheris stated with equal certainty that plaintiff suffered scombroid poisoning (NYSCEF Doc No 40). "Conflicting expert [opinions such as these] raise issues of fact and credibility that cannot be resolved on a motion for summary judgment" (Bradley v Soundview Healthcenter, 4 A.D.3d 194, 194 [1st Dept 2004]; Artemiou v City of New York, 220 A.D.3d 437, 439 [1st Dept 2023]).
Additionally, while the evidence of Sushi Fussion's food safety practices is relevant to whether scombroid was present, it is not dispositive (Harris, 146 A.D.3d at 477). Katanov attested to the restaurant's processing and storage practices (NYSCEF Doc No 30), but he did not confirm that such practices were followed with the tuna plaintiff was served on March 12, 2019 (White v MP 40 Realty Mgt. LLC, 187 A.D.3d 561, 562 [1st Dept 2020] ["Proof of a regular [practice] 'does not suffice for purposes of showing that it was followed'"], citing Gautier v 941 Intervale Realty LLC, 108 A.D.3d 481, 481 [1st Dept 2013] [defendant offered testimony of its superintendent regarding the building's regular janitorial schedule but "offered no evidence that the schedule was followed on the day of the accident"]).
"In any case, plaintiff, in opposing [Sushi Fussion's motion], adduced sufficient evidence to raise a triable issue [since his] evidence included a summary of events showing the temporal relation between the alleged food poisoning,... the clinical observations of his treating physicians, and medical opinions submitted on his behalf' (Jaroslawicz, 292 A.D.2d at 233). Since a material issue of fact remains as to whether plaintiff suffered anaphylaxis or scombroid poisoning, his complaint will not be dismissed as against Sushi Fussion.
CONCLUSION
Accordingly, it is
ORDERED that Sushi Fussion's motion for summary judgment is denied in its entirety.