Charles Reid, as Administrator of the Estate of Simone Dorie Brown, and Charles Reid, Individually, Plaintiffs v. Spice City, Inc., d/b/a Sea Restaurant1, Defendant The following e-filed papers read herein: NYSCEF Doc. No. Notice of Motion, Affirmations and Exhibits 118-133 Affirmations in Opposition and Exhibits 136-142 Reply Affirmation 143 In this action to recover damages for wrongful death, plaintiffs allege that decedent Simone Dorie Brown ate food from defendant and suffered a fatal anaphylactic reaction. Defendant moved for summary judgment dismissing the complaint. Plaintiffs opposed the motion. Pursuant to CPLR §3212, a defendant moving for summary judgment must lay bare its proof by establishing that there are no issues of fact for a jury to determine. In opposition, a plaintiff is required to demonstrate that there is a question of fact for the jury to decide. Defendant established its prima facie entitlement to judgment as a matter of law, by submitting, among other things, its expert’s affirmation and medical records, which indicated that decedent did not have an allergic reaction. Defendant’s expert opined that an examination of decedent’s lungs revealed chronic asthma changes. Moreover, the autopsy report demonstrated that decedent’s tryptase level was normal, which would normally be increased for a person who had an anaphylactic reaction. In opposition, plaintiffs’ expert affirmation raised triable issues of fact, inter alia, whether decedent exhibited signs and symptoms of an allergic reaction, whether decedent’s death was caused by her preexisting condition of asthma, and whether the tryptase level was depleted by the time the test was conducted. Since this Court’s role, upon a summary judgment motion, is issue finding and not issue determination, defendant’s application must fail. T. Mina Supply, Inc. v. Clemente Bros. Contracting Corp., 194 A.D.3d 879, 143 N.Y.S.3d 889 (2d Dept. 2021); Shabat v. State, 177 A.D.3d 1009, 113 N.Y.S.3d 174 (2d Dept. 2019). Defendant’s assertions regarding decedent eating ribs as opposed to a spring roll, prior to experiencing trouble breathing, does not raise a new theory nor support the dismissal of this action. Alao v. Richmond Univ. Med. Ctr., 213 A.D.3d 722, 183 N.Y.S.3d 144 (2d Dept. 2023); Walker v. Jamaica Hosp. Med. Ctr., 208 A.D.3d 714, 173 N.Y.S.3d 630 (2d Dept. 2022). As the testimony and records indicated, decedent ate food from defendant and almost immediately became ill and unable to breathe. Defendant was not surprised in any way by the fact that the decedent consumed food, whether it was a spring roll or a rib. In addition, defendant’s argument that plaintiffs’ expert was unqualified to render an opinion is meritless. Alao v. Richmond Univ. Med. Ctr. 213 A.D.3d at 724. It should be noted that this Court did not consider the supplemental affirmation annexed to the reply affirmation. Pena v. Geisinger Community Medical Center, 209 A.D.3d 663, 174 N.Y.S.3d 873 (2d Dept. 2022). Accordingly, defendant’s motion for summary judgment is denied in its entirety. The parties shall appear for an Alternative Dispute Resolution conference on January 30, 2024, at 2:30PM.
