Upon the following papers read on this e-filed motion for summary judgment: Notice of Motion and supporting papers electronically filed by defendant, February 7, 2019; Answering Affidavits and supporting papers electronically filed by plaintiff, April 4, 2019; Replying Affidavits and supporting papers electronically filed by defendant, April 19, 2019; it is ORDERED that the motion by defendant Chen Liu (NY) Inc., d/b/a Tony’s Sushi 2, for summary judgment dismissing the complaint is granted. This is an action to recover damages for injuries allegedly sustained by plaintiff on September 29, 2014, when he was served food at defendant restaurant that contained an ingredient that was not listed on the menu, namely peanuts, which allegedly caused him to suffer an allergic reaction. Plaintiff alleges that defendant, which operates the restaurant, was negligent in, inter alia, failing to warn him of the presence of peanuts in the food, creating a dangerous condition, and in failing to disclose the presence of a potential allergen. Defendant now moves for summary judgment dismissing the complaint, arguing that it did not owe a duty to plaintiff, or, if it did owe a duty, that there is no causal connection between its alleged negligence and plaintiff’s injuries. In support of their motion, defendant submits, inter alia, copies of the pleadings, the bill of particulars, the transcript of plaintiff’s deposition testimony, plaintiff’s uncertified medical records and the affirmed report of Dr. Kelly Johnson-Arbor. Plaintiff opposes the motion, arguing that triable issues of fact exist as to the duty owed by defendant and as to the causal connection between the presence of the alleged allergen and his injury. Plaintiff submits his deposition testimony and a copy of a menu from the date of the injury. Plaintiff also refers to his uncertified medical records, which were submitted in support of defendant’s motion. At the outset, the court notes that while the defendant has submitted the uncertified medical records of plaintiff’s September 30, 2014 to October 1, 2014 admission to Brookhaven Memorial Hospital, plaintiff does not challenge their admissibility and references their contents in opposition. Since there is no prejudice to any substantial right of the plaintiff by the lack of certification, the records will be considered admissible (Matter of Robert E. Havell Revocable Trust v. Zoning Bd. of Appeals of Vil. of Monroe, 127 AD3d 1095, 8 NYS3d 353 [2d Dept 2015]; see CPLR 2001). Additionally, in civil cases, “inadmissible hearsay admitted without objection may be considered and given such probative value as, under the circumstances, it may possess” (Rosenblatt v. St. George Health & Racquetball Assoc., LLC, 119 AD3d 45, 54, 984 NYS2d 401 [2d Dept 2014], citing Jerome Prince, Richardson on Evidence §8-108 [Farrell 11th ed 2008]). The facts of this case, subject to some dispute, can be summarized as follows: On September 29, 2014 at approximately 5:00 p.m., plaintiff visited the defendant restaurant for dinner with his girlfriend. Plaintiff testified he and his girlfriend ordered sushi and a chicken and lettuce wrap, which they shared for dinner. Plaintiff testified he inquired about the ingredients in the wrap and told the wait staff that he was allergic to peanuts. Plaintiff testified he was told the chicken wrap did not contain peanuts. Plaintiff states that began to eat, took a bite of the lettuce wrap, and felt “immediate constriction in my throat.” He testified he could breathe, but that he could not swallow anything due to the tightness in his throat. He testified he paid the bill and left the restaurant. He further testified that after he arrived home, he utilized both a toothbrush and a makeshift cable wire that he cut from the back of his television set, and inserted these objects down esophagus in an attempt to dislodge the obstruction he felt in his throat. Plaintiff testified three to four years prior, food become lodged in his esophagus and he was able to dislodge the obstruction himself using a similar method of sticking a makeshift wire, then from flooring, into his esophagus to push the food through. Plaintiff further testified that following day, on September 30, 2014, at 3:30 p.m., he presented himself to the emergency department at Brookhaven Memorial Hospital. He testified he decided to seek emergency care because he was concerned that the use of the makeshift tool may have damaged his esophagus. In the emergency room, plaintiff reported to hospital staff that he had a peanut allergy and that he ate food containing peanuts the night before. Plaintiff testified he was given benadryl intravenously in the emergency room, as he could not swallow a pill. He also testified that he told hospital staff that his last allergic reaction was 25 years prior. Plaintiff’s medical records indicate that he reported to hospital staff that his allergy to peanuts was in childhood, and that he had a medical history of congenital esophageal narrowing. He further reported to hospital staff that he has had problems swallowing “almost every day for years which is getting worse over time.” Patient also reported to hospital staff that over the course of the past 20 years, it has been his practice to “stick[] a wire down his throat to push food” down, but that this time it was difficult because he “felt he ripped something and became swollen.” Plaintiff reported to the hospital staff that he had undergone a pneumatic dilation of his esophagus 20 years prior, to treat his narrowed esophagus. The medical records indicate that his hospital gastroenterologist, Dr. Berman, was concerned that the makeshift tool that plaintiff inserted into his esophagus “could conceivably” have caused injury to his esophagus, and he ordered an esophagogastroduodenoscopy. This procedure was performed on October 1, 2014, and during the procedure a food bolus was removed from his lower esophagus. Plaintiff was discharged and diagnosed with eosinophilic esophagitis. Plaintiff was not diagnosed with anaphylaxis or an allergic reaction. It is well settled that the proponent of a summary judgment motion bears the initial burden of establishing his or her entitlement to judgment, as a matter of law, in his or her favor by offering admissible evidence sufficient to eliminate any material issues of fact from the case (see Alvarez v. Prospect Hosp., 68 NY2d 320, 508 NYS2d 923 [1986]; Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 487 NYS2d 316 [1985]; Zuckerman v. City of New York, 49 NY2d 557, 427 NYS2d 595 [1980]). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of any opposition thereto (Winegrad v. New York Univ. Med. Ctr., supra). Once the moving party has made the requisite showing, the burden then shifts to the opposing party, requiring him or her to present admissible evidence and facts sufficient to require a trial on any issue of fact (CPLR 3212 [b]; Alvarez v. Prospect Hosp., supra; Zuckerman v. City of New York, supra). On such a motion, the court is charged with determining whether issues of fact exist while viewing any evidence in a light most favorable to the nonmoving party; the court is not responsible for resolving issues of fact or determining matters of credibility (see Chimbo v. Bolivar, 142 AD3d 944, 37 NYS3d 339 [2d Dept 2016]; Pearson v. Dix McBride, LLC, 63 AD3d 895, 883 NYS2d 53 [2d Dept 2009]; Kolivas v. Kirchoff, 14 AD3d 493, 787 NYS2d 392 [2d Dept 2005]). A motion for summary judgment should be denied where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility (see Chimbo v. Bolivar, supra; Benetatos v. Comerford, 78 AD3d 730, 911 NYS2d 155 [2d Dept 2010]). “In determining a motion for summary judgment dismissing a complaint, all of the evidence must be resolved in that party’s favor” (Santelises v. Town of Huntington, 124 AD3d 863, 865, 2 NYS3d 574 [2d Dept 2015]). To prove a prima facie case of negligence, a plaintiff must demonstrate the existence of a duty, a breach of that duty, and that the breach of such duty was a proximate cause of his or her injuries (see Pulka v. Edelman, 40 NY2d 781, 390 NYS2d 393 [1976]; Engelhart v. County of Orange, 16 AD3d 369, 790 NYS2d 704 [2d Dept], lv denied 5 NY3d 704, 801 NYS2d 1 [2005]). In the absence of duty, there is no breach and without a breach there is no liability (Pulka v. Edelman, supra; Miglino v. Bally Total Fitness of Greater N.Y., Inc., 92 AD3d 148, 937 NYS2d 63 [2d Dept 2011]; Schindler v. Ahearn, 69 AD3d 837, 894 NYS2d 462 [2d Dept 2010]). Assuming a duty of care is owed by the defendant, the plaintiff must establish a prima facie case of negligence with evidence that the defendant’s negligence “was a substantial cause of the events which produced the injury” (Derdiarian v. Felix Contr., 51 NY2d 308, 315, 434 NYS2d 166 [1980]; see Maheshwari v. City of New York, 2 NY3d 288, 778 NYS2d 442 [2004]; Garcia v. Pepe, 11 AD3d 654, 783 NYS2d 406 [2d Dept 2004], lv dismissed in part, denied in part 5 NY3d 821, 804 NYS2d 31 [2005]). Proximate cause may be inferred from the facts and circumstances surrounding the injury; nevertheless, there must be sufficient proof in the record to permit a finding of proximate cause based not upon speculation, but upon the logical inferences to be drawn from the evidence (see Schneider v. Kings Hwy. Hosp. Ctr., 67 NY2d 743, 500 NYS2d 95 [1986]; Hartman v. Mountain Val. Brew Pub, 301 AD2d 570, 754 NYS2d 31 [2d Dept 2003]; Babino v. City of New York, 234 AD2d 241, 650 NYS2d 778 [2d Dept 1996]). Although determinations of causation are generally left for trier of fact, it is the function of the court to determine if a prima facie case of causation has been established in the first instance (Outlaw v. Citibank, N.A., 35 AD3d 564, 826 NYS2d 642 [2d Dept 2006]; Grover v. Town of Montour, 252 AD2d 859, 675 NYS2d 686 [3d Dept 1998]; Pahler v. Daggett, 170 AD2d 750, 565 NYS2d 587 [3d Dept 1991]). Liability may not be imposed upon a party who merely furnished the condition or occasion for the occurrence of the event, but was not one of its causes (Sheehan v. City of New York, 40 NY2d 496, 387 NYS2d 92 [1976]; see Peralta v. Manzo, 74 AD3d 1307, 905 NYS2d 245 [2d Dept 2010]; Wechter v. Kelner, 40 AD3d 747, 835 NYS2d 653 [2d Dept 2007]). A break in the nexus between the defendant’s negligence and the plaintiff’s injury brought about by the act of a third party or the plaintiff may affect the defendant’s liability (Kush v. City of Buffalo, 59 NY2d 26, 33, 462 NYS2d 831 [1983]). If the intervening act is a natural, normal and foreseeable consequence of the defendant’s conduct, the defendant will continue to be liable (Lynch v. Bay Ridge Obstetrical & Gynecological Assoc., P.C., 72 NY2d 632, 536 NYS2d 11 [1986]). However, an intervening act that is extraordinary under the circumstances, “not foreseeable in the normal course of events, or independent of or far removed from the defendant’s conduct,” may be a superseding event that breaks the causal nexus (Weiss v. Hager, 151 AD3d 906, 908-909, 58 NYS3d 403 [2d Dept 2017]; see Maheshwari v. City of New York, supra; Derdiarian v. Felix Contr., supra). It is generally for the fact finder to determine whether an act is foreseeable and whether the course of events are normal (Lynch v. Bay Ridge Obstetrical & Gynecological Assoc., P.C., supra; Derdiarian v. Felix Contr., supra). Defendant made a prima facie case of entitlement to summary judgment. Defendant submits the curriculum vitae and affirmed report of Dr. Kelly Johnson-Arbor, who is licensed to practice medicine in the State of New York and board certified in, inter alia, emergency medicine. Dr. Johnson-Arbor opines that plaintiff’s injuries were the result of esophageal food impaction, a condition directly related to his underlying medical condition of eosinophilic esophagitis, and not due to an allergic reaction. Dr. Johnson-Arbor avers that she reviewed the medical records of plaintiff, including the records of the endoscopy procedure which was performed on October 1, 2014. Dr. Johnson-Arbor notes that while plaintiff reported to medical personnel that he suffered from a peanut allergy, that he had recently been exposed to peanuts the night before, and that he received treatment for a possible allergic reaction in the emergency department, in her medical opinion, his records indicate that he did not exhibit any physical signs or symptoms consistent with a severe allergic reaction or anaphylaxis. Dr. Johnson-Arbor further explains that plaintiff’s failure to seek medical attention until almost 24 hours after knowingly ingesting an allergen substantiates her opinion that he was not suffering from a severe allergic reaction subsequent to the ingestion of the peanut-containing food. Dr. Johnson-Arbor avers that after a biopsy of his esophagus, plaintiff was diagnosed with eosinophilic esophagitis, a chronic inflammatory disease of the esophagus, which places him at risk of esophageal food impaction and obstruction. Dr. Johnson-Arbor also notes that plaintiff reported a history of food impaction, for which he would use a makeshift tool to push food down his throat to relieve the impactions. Dr. Johnson-Arbor opines, within a reasonable degree of medical certainty, that plaintiff’s food impaction on the date of the alleged negligence was more likely than not related to the presence of underlying eosinophilic esophagitis, not from exposure to peanuts. Further, assuming, without deciding, that defendant owed and breached a duty of care to plaintiff, defendant has established, prima facie, that plaintiff was the sole proximate cause of his injuries. The reckless act of plaintiff in inserting a makeshift wire into his throat to loosen food that was stuck in his esophagus, an act he had performed on prior occasions unrelated to an alleged allergic reaction, constituted an extraordinary intervening act as a matter of law (see Martinez v. Lazaroff, 48 NY2d 819, 424 NYS2d 126 [1979]; Haughton v. T & J Elec. Corp., 309 AD2d 1007, 765 NYS2d 664 [3d Dept 2003]. Plaintiff’s testimony indicates that after inserting the makeshift wire down his throat, he went to the hospital out of concern that he may have caused damage to his esophagus. Further, plaintiff’s statements to hospital staff indicate that he became swollen after his use of the wire, and that he felt as if he had “ripped something” in his throat in the process. As such, plaintiff’s actions are intervening acts, extraordinary under the circumstances, not foreseeable, and independent of defendant’s conduct, breaking the causal nexus between defendant’s alleged breach of duty and plaintiff’s injuries (Weiss v. Hager, supra; see Maheshwari v. City of New York, supra; Derdiarian v. Felix Contr., supra). In opposition, plaintiff has failed to raise an issue of fact requiring trial on the issue of proximate cause. “The party opposing the motion must demonstrate the existence of a factual issue requiring a trial of the action by admissible evidence, not mere conjecture, suspicion or speculation” (Babino v. City of New York, supra). Plaintiff fails to offer competent evidence to raise a triable issue of fact with respect to causation, rather his opposition merely furnishes conclusory statements regarding the cause of his injuries. Assuming, without deciding, that defendant owed and breached a duty of care to plaintiff, there is no causal connection between any alleged breach and plaintiff’s injury. In that regard, the food served by defendant merely furnished the occasion for the incident, but was not the proximate cause of plaintiff’s condition (see Sheehan v. City of New York, supra; see Peralta v. Manzo, supra; Wechter v. Kelner, supra). Accordingly, the motion for summary judgment dismissing the complaint is granted. X FINAL DISPOSITION NON-FINAL DISPOSITION
