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.