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A piece of grilled shrimp flung playfully by a Japanese hibachi chef toward a tableside diner is being blamed for causing the man’s death. Making a proximate-cause argument, the lawyer for the deceased man’s estate has alleged that the man’s reflexive response — to duck away from the flying food — caused a neck injury that required surgery. Complications from that first operation necessitated a second procedure. Five months later, Jerry Colaitis of Old Brookville, N.Y., was dead of an illness that his family claims was proximately caused by the injury. But for the food-flinging incident at the Benihana restaurant in Munsey Park, N.Y., Colaitis would still be alive, attorney Andre Ferenzo asserts. “They set in motion a sequence of events,” he said. Alleging wrongful death, Colaitis’ estate is seeking $10 million in damages. The complaint includes claims for pain and suffering and loss of consortium. Benihana has denied all of the complaint’s material allegations. In other papers filed with the court, defense attorney Andrew B. Kaufman also questioned whether Colaitis was trying to avoid the flying shrimp or catch it in his mouth. Last week, Nassau Supreme Court Justice Roy Mahon denied a defense motion for partial summary judgment, clearing the way for trial. Estate of Colaitis v. Benihana Inc., 015439-2002. Kaufman, a partner in the New York City firm Gordon Silber, declined to discuss the case, saying only that he was reviewing the judge’s Nov. 16 decision for appealable issues. Ferenzo, a Roslyn, N.Y., solo practitioner, maintains there is no issue as to liability. FAMILY GATHERING According to Ferenzo, Colaitis, a furrier in his early 40s, had gathered with his wife, two sons and four stepdaughters to celebrate one of the boys’ birthdays. Tableside cooking and chefs’ showmanship have been a trademark of the Benihana chain since it opened its first U.S. steak house in 1964. Seated around one of Benihana’s trademark hibachi dinner tables, the family watched as a chef diced the food as he cooked it. Ferenzo said that the chef began flipping pieces of hot food toward the diners, once burning one of Colaitis’ sons. Asked to stop, the attorney said, the chef responded only with a smile and allegedly continued tossing morsels at his patrons. When the chef flipped a piece of shrimp at Colaitis, he allegedly ducked away, injuring two vertebra in his neck. Doctors reportedly told Colaitis that if he did not have corrective surgery, another injury to the same disks might leave him paralyzed. The first operation was in June 2001, six months after the Benihana dinner. A second procedure was performed two weeks later. In succeeding months Colaitis developed a high fever and problems with his breathing and memory. He died in a hospital five months after the second surgery, on Nov. 22, 2001. A contributing cause of his death, Ferenzo said, was a blood-borne infection. Justice Mahon’s decision also listed respiratory failure and renal failure as causes of death. Neither side has sought to add the doctors or hospital where the surgery occurred, New York University Medical Center, to the case. Colaitis died at St. Francis Hospital in Roslyn. Arguing for partial summary judgment, defendant’s attorney Kaufman challenged the plaintiff’s ability to prove proximate cause. In court papers, he said that Benihana cannot be liable for Colaitis’ death because of a break in the chain of causation between the first or second procedures and his death five months later. “Essentially, as the plaintiff’s decedent died of an unidentifiable medical condition, the plaintiff will be unable to establish that any alleged negligence by Benihana proximately caused his demise,” Kaufman wrote. In denying defendant’s motion, Justice Mahon held that whether the tableside events caused Colaitis’ death would best be resolved at trial.

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