SORRENTINO III v. The City of New York, Defendant.

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Supreme Court, Appellate Division, First Department, New York.

George E. SORRENTINO, III, et al., Plaintiffs-Respondents, v. Sheldon FIREMAN, etc., et al., Defendants-Appellants, The City of New York, Defendant.

Decided: October 31, 2002

MAZZARELLI, J.P., SAXE, ELLERIN, LERNER and MARLOW, JJ. Fredrick A. Schulman, Plaintiffs-Respondents. Bruce Strikowsky, Defendants-Appellants.

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 N.Y.2d 66, 72, 603 N.Y.S.2d 414, 623 N.E.2d 541;  Parvi v. City of Kingston, 41 N.Y.2d 553, 559, 394 N.Y.S.2d 161, 362 N.E.2d 960).   We specifically note that the Sprint report provided evidence indicating a significant delay in placing the call.

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