Short Form Order

NEW YORK SUPREME COURT - QUEENS COUNTY

Present:        HONORABLE JOSEPH F. LISA IA Part 15         Justice

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                 x Index
MISTY JAMES            :       Number 24709 1997
                                  :
                  : Motion
     - against -      :   Date June 30, 1999
                  :
                  : Motion
HENDEL PRODUCTS, INC., et al.     :   Cal. Number 14
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The following papers numbered 1 to 10 read on this motion by defendants for summary judgment dismissing plaintiff's complaint against them, and upon the cross motion of plaintiff for sanctions against the defendants.

                                                Papers
                                                Numbered

Notice of Motion - Affidavits - Exhibits ......... 1 - 4
Notice of Cross Motion - Affidavits - Exhibits.... 5 - 8
Reply Affidavit - Exhibits........................ 9 - 10

Upon the foregoing papers it is ordered that the motion is granted and the cross motion is denied.

Plaintiff seeks damages for injuries she allegedly suffered from defendants' negligence. Plaintiff asserts that she became ill on October 26, 1996 after eating a meal at a McDonald's Restaurant owned by defendant Hendel Products.

Defendants assert that plaintiff has failed to meet her burden of establishing that the said meal was defective and that her injury resulted from its consumption. (Valenti v Great Atl. & Pac. Tea Co., 207 AD2d 340; Uffner v Campell Soup Co., 207 Misc 21.) In support of their motion for summary judgment, defendants proffer the affidavit of an infectious disease expert, Dr. Larry Lutwick. Based upon his review of incident report prepared by the New York City Department of Health's Bureau for Environmental Investigations ("BEI report"), and plaintiff's medical records, Dr. Lutwick states in his affidavit that the two forms of bacteria found in the food sample, streptococci and enterococci, could not possibly have caused the symptoms suffered by plaintiff. Dr. Lutwick stated that although the absence of a stool sample or any laboratory reports makes an exact diagnosis impossible, that the illness plaintiff most probably suffered from was not food poisoning, but viral gastroenteritis, an illness usually transmitted from person to person.

Plaintiff disputes this finding and relies on the aforesaid report of the Bureau of Environmental Investigations which states that both the streptococci and enterococci bacteria were found in the sample and that "the symptoms * * * described by the ill are consistent with typical streptococcal outbreaks." However, the report is unsworn. While the report indicates that it was prepared by Elizabeth A. Griffin, M.P.H., there is no accompanying affidavit from Ms. Griffin attesting to her education or training, to the medical basis for her conclusions or even to the truth of the statements made in the aforesaid report. Therefore the report is, in itself, inadmissable. (CPLR 2106; Bendik v Dybowski, 227 AD2d 228.) Even if this court were to consider the report, nothing in the report refutes Dr. Lutwick's medical conclusion that plaintiff's illness could not have been caused either the streptococci or the enterococci bacteria.

Once a party has made a prima facie showing of entitlement to judgment, the burden shifts to the party opposing the motion to produce proof in admissible form sufficient to establish the existence material issues of fact. (Alvarez v Prospect Hosp., 68 NY2d 320.) Here, the plaintiff provides only the BEI report, which is inadmissable, and the affidavit of plaintiff's treating physician. Plaintiff's physician states only that he treated plaintiff for food poisoning approximately two weeks after the incident and that "the food purchased from defendants and ingested by plaintiff was contaminated and as a result of which [plaintiff] became ill." It is axiomatic that mere conclusory statements in an affidavit cannot defeat a motion for summary judgment. (Holbrook v United Hosp. Med. Ctr., 248 AD2d 358; Young v Fleary, 226 AD2d 454.) There is no stated medical basis for the physician's statements and the affidavit fails to address, much less refute the other possible causes of plaintiff's illness as raised by defendants' expert.

Therefore, plaintiff has failed to prove that her injury resulted from the consumption of the meal from defendant's restaurant and has failed to provide competent evidence to raise any other issue of material fact. Accordingly, defendants= motion for summary judgment dismissing the claims against them is granted. The cross motion is denied in all respects.

Dated: September , 1999 ______________________________
                                                J.S.C.