Edmiston v. Tony Rome's, Inc.

—Order unanimously affirmed with costs. Memorandum: Although defendant Tony Rome’s, Inc., met its initial burden of establishing entitlement to judgment as a matter of law, plaintiff submitted evidentiary proof in admissible form raising an issue of fact whether Tony Rome’s served decedent unwholesome food that caused his fatal illness (see, Zuckerman v City of New York, 49 NY2d 557, 562). Contrary to the contention of Tony Rome’s, the opinion of plaintiffs medical expert concerning the incubation period for decedent’s illness does not constitute a formal judicial admission (see, Richardson, Evidence § 216 [Prince 10th ed]; cf., Russell v Gaines, 209 AD2d 939). Plaintiffs other expert, who has a Ph.D. in toxicology, is qualified to render an opinion on the issue of causation (see generally, Matott v Ward, 48 NY2d 455, 459-462), and his opinion was based upon established facts relevant to the controversy (see, Hugelmaier v Town of Sweden, 144 AD2d 934, lv denied and dismissed 74 NY2d 699). (Appeal from Order of Supreme Court, Erie County, Flaherty, J. — Summary Judgment.) Present — Denman, P. J., Pine, Wesley, Balio and Boehm, JJ.