Belinsky v. Twentieth Restaurant, Inc.
| Decision Date | 25 June 1962 |
| Citation | 207 F. Supp. 412 |
| Parties | Isai BELINSKY, Plaintiff, v. TWENTIETH RESTAURANT, INC., also known as Cobbs Corner Restaurant, Defendant. |
| Court | U.S. District Court — Southern District of New York |
Lawrence G. Nusbaum, Jr., New York City, for plaintiff.
Irving Segal, New York City, for defendant.
Plaintiff moves pursuant to Rule 56 of the Federal Rules of Civil Procedure, 28 U.S.C.A. for partial summary judgment on the issue of liability.
Plaintiff claims damages for physical injuries allegedly resulting from eating particles of glass which were embedded in food eaten by plaintiff in defendant's restaurant.
Plaintiff contends that there is no genuine issue of fact concerning the allegation that he ate food in defendant's restaurant which contained glass and that, pursuant to New York law, defendant is liable to him under a theory of implied warranty for any injuries resulting therefrom.
Defendant contends that there are issues to be tried concerning its negligence in preparing the food and other issues attending the serving and consumption of the allegedly impure food.
The court agrees that plaintiff need not show negligence in the preparation of the food to recover. It is clear under New York law that the restaurant owner warrants by implication to his customers that the food served is reasonably fit for consumption. Temple v. Keeler, 238 N.Y. 344, 144 N.E. 635, 35 A.L.R. 920 (1924). Since this incident happened in New York there can be no doubt New York law is applicable and that an impurity such as glass does not meet the test of food reasonably fit for consumption.
The remaining question on this motion is whether there is any triable issue as to whether plaintiff was served and ate the impure food in defendant's restaurant.
Plaintiff has submitted two affidavits by eyewitnesses, in addition to his own affidavit, attesting to the fact that he ate impure food in defendant's restaurant, showed the particles of glass to the cashier, waitress, and the manager, and was bleeding as a result thereof.
Defendant submitted an affidavit from the manager of the restaurant stating that he talked to plaintiff but otherwise has no personal knowledge of the incident, and of the cashier stating that she has no recollection of speaking to plaintiff. Additionally, defendant submitted an affidavit of the payroll clerk stating that records of the restaurant indicate that the restaurant had six waitresses and six waiters employed on the day of the incident but that the records do not indicate which of these persons were on duty at the time of the alleged incident.
From the papers submitted, I am convinced that there is no triable issue of fact as to the facts sworn to in the affidavits submitted by plaintiff. Defendant's affidavits do not controvert these claims but instead claim lack of...
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...undisputed issues of material fact. Fed.R.Civ.P. 56(d). Such facts are then deemed established for trial. See Belinsky v. Twentieth Restaurant, 207 F.Supp. 412 (S.D.N.Y.1962). III. Defendant Gibraltar raises various alternative grounds for summary judgment, specifically: (1) that plaintiffs......
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...issues or material fact. Such facts are then deemed established for trial. Fed. R.Civ.P. 56(d); see Belinsky v. Twentieth Restaurant, Inc., 207 F.Supp. 412 (S.D.N.Y.1962). Plaintiffs' Motion for Partial Summary Through their motion for partial summary judgment, plaintiffs have effectively s......
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