| Amit v Hineni Heritage Ctr. |
| 2008 NY Slip Op 02088 [49 AD3d 574] |
| March 11, 2008 |
| Appellate Division, Second Department |
| Shani Amit, Respondent, v Hineni Heritage Center,Appellant, Shimon Avitan et al., Respondents. |
—[*1] Ofodile & Associates, P.C., Brooklyn, N.Y. (Anthony C. Ofodile of counsel), forplaintiff-respondent.
In an action to recover damages for personal injuries, the defendant Hineni Heritage Centerappeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County(Kramer, J.), dated March 2, 2007, as denied its motion for summary judgment dismissing thecomplaint and all cross claims insofar as asserted against it and for summary judgment on itscross claim for common-law indemnification against the defendants Darna Restaurant, ShimonAvitan, and Yehoud Avital, individually and doing business as Mezonot Glatt Kosher.
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiff claims that she became ill after attending a Shabbat dinner at the premises of thedefendant Hineni Heritage Center (hereinafter Hineni). The food had been prepared by thedefendants Shimon Avitan and Yehoud Avital, doing business as Mezonot Glatt Kosher, anddelivered to Hineni's premises approximately seven hours before the dinner.
Shortly after returning home from the dinner, the plaintiff became ill, and the undisputedevidence shows that, of the 70 to 80 dinner guests, at least a dozen other people became ill thatnight. The plaintiff was later diagnosed as suffering from "food poisoning" and "food-relatedgastroenteritis."[*2]
Hineni failed to establish, prima facie, its entitlement tojudgment as a matter of law dismissing the complaint and all cross claims insofar as assertedagainst it (see Ayotte v Gervasio, 81 NY2d 1062 [1993]; O'Leary v Bravo Hylan, LLC, 8 AD3d542 [2004]; Jaroslawicz v Prestige Caterers, 292 AD2d 232, 233 [2002]). AlthoughHineni did not prepare the food, it was responsible for its proper storage and service. Yet Hinenifailed to submit any evidence showing that the food was properly stored and served. Under thesecircumstances, Hineni was not entitled to summary judgment.
Moreover, because Hineni failed, prima facie, to establish its own lack of negligence, theSupreme Court properly denied that branch of its motion which was for summary judgment on itscross claim for common-law indemnification against the other defendants (see Coque v Wildflower Estates Devs, Inc.,31 AD3d 484, 489-490 [2006]; Correia v Professional Data Mgt., 259 AD2d 60,65 [1999]).
In light of our determination, we need not reach the parties' remaining contentions. Skelos,J.P., Fisher, Covello and Eng, JJ., concur.