SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4685-18

KYUNG OK SON, 

Plaintiff-Appellant,

v.

KAYA SUSHI RESTAURANT,

MONTAUK SEAFOOD, CO.,

INC.,

Defendant-Respondent.

___________________________

Submitted March 2, 2021 – Decided May 19, 2021

Before Judges Moynihan and Gummer.

On appeal from the Superior Court of New Jersey, Law 

Division, Bergen County, Docket No. L-6657-16.

Michael S. Kimm, attorney for appellant. 

Respondent has not filed a brief.

PER CURIAM

Plaintiff Kyung Ok Son became ill after eating a marinated raw crab dish

at Kaya Sushi Restaurant. Plaintiff alleged defendant Montauk Seafood Co., 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the 

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
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Inc. was among the entities that "engaged in sub-standard food sales, 

manufacturing, distribution, and/or handling practices and permitted 

contaminated food to be served to the general public in violation of the required 

food standards." 

After plaintiff had settled with Kaya Sushi Restaurant and default had 

been entered against defendant, Judge Estela M. De La Cruz conducted a proof 

hearing regarding plaintiff's claim against defendant which the judge synopsized 

in her written decision: "[T]he product plaintiff consumed was detected to 

contain two separate organisms which were directly traceable to the raw crab 

meat. Plaintiff argues that the defaulted [defendant's] violation of the Products 

Liability Act[,] [(PLA)] N.J.S.A. 2A:58C-1 to -11[,] proximately caused 

plaintiff to suffer her injuries and damages." 

The judge considered plaintiff's: testimony; amended complaint; request 

for default; medical expert's report, de bene esse video deposition testimony and 

concomitant transcript; and hospital medical records, and dismissed plaintiff's 

complaint with prejudice, concluding plaintiff failed to present any evidence of 

defendant's breach of any duty, statute or law to support entry of a judgment.

Plaintiff appeals from that order arguing reversal is required because, 

although the judge "seemed to have no problem with recognizing [defendant's] 
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liability under the PLA[,] [t]he problem is that [the judge] then committed a 

quantum leap by holding that, because plaintiff settled for an adequate sum of 

money, she should receive nothing from the defaulting defendant." The judge 

said no such thing, and we affirm substantially for the reasons Judge De La Cruz 

set forth in her cogent written decision.

The judge considered plaintiff's expert's opinion that plaintiff's illness was 

caused by two microorganisms that contaminated the crab meat, one of which 

had an incubation period that "could last as long as ten days." Judge De La Cruz 

found the expert "prominently refer[red]" to a sanitary inspection municipal 

health department inspectors had conducted at the restaurant some two weeks

prior to plaintiff's hospitalization that "documented an environment conducive 

to transmitting the infectious agents to the host." The unsanitary conditions 

included inadequate hand-washing facilities in the toilet and food-preparation 

areas, food products maintained at improper temperatures and flies. 

The judge further found the restaurant owner's deposition "revealed . . . 

he never worked in a kitchen[,] . . . the chef and his subordinates did not have 

food[-]safety[-]handling training" and the owner

admitted he did not know what was required for cold 

storage temperatures and described his practice of 

purchasing live crabs in boxes and then freezing the live 

ones for three days. The crabs were washed with tap 
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water of unknown temperature and put in low[-]salt soy 

sauce and placed in a refrigerator for two days before 

service to customers. 

The judge also considered that the expert 

noted as "particularly relevant to this case" that 

researchers found that [foodborne] infectious agents 

survive in raw ready-to-eat crab marinated in soy sauce 

[and] . . . that freezing the crab product for long periods 

of time is insufficient to exterminate any harmful

organisms including E. coli and vibrio, which have 

been known to survive up to three months at frozen 

temperatures. 

Judge De la Cruz recognized that a manufacturer or seller of a product is 

liable under the PLA if the plaintiff proves by a preponderance of the evidence

"that the product was defective, that the defect existed when the product left the

manufacturer's control, and that the defect proximately caused injuries to the 

plaintiff, a reasonably foreseeable or intended user." See Myrlak v. Port Auth. 

of N.Y. & N.J., 157 N.J. 84, 97 (1999). And the judge held plaintiff to the 

requirement that she prove causation. See Cruz-Mendez v. ISU/Ins. Servs. of 

San Francisco, 156 N.J. 556, 574 (1999).

After a careful review of the evidence, the judge concluded plaintiff had 

not met her burden:

There is no evidence presented in this record that shows 

the product was defective when it was distributed by 

[defendant] and under the control of [defendant]. There 
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is a complete absence of this evidence since the entire 

crux and heart of plaintiff's expert's opinion is that the 

food was contaminated as a result of the extremely 

unsanitary environment and habits of the host 

restaurant. There is no evidence in this record that the 

product was defective when it was distributed by 

[defendant]. There is simply no evidence to show that 

the product [defendant] delivered to Kaya Sushi 

Restaurant was defective. What the evidence does 

show is that the host restaurant, co-defendant Kaya 

Sushi Restaurant's, procedures and environment in food 

preparation was likely the cause of the contamination.

 

"New Jersey's salutary practice has been to allow the trial judge the 

discretion to require proof of liability at a default hearing." Heimbach v. 

Mueller, 229 N.J. Super. 17, 20-21 (App. Div. 1988); R. 4:43-2(b). Although a 

plaintiff is only required to "adduce proofs that the facts alleged 'might have 

been the case,'" Heimbach, 229 N.J. Super. at 23 (quoting Trans World Airlines 

v. Hughes, 449 F.2d 51, 64 (2d Cir. 1971), rev'd on other grounds, 409 U.S. 363 

(1973)), denial of judgment for a plaintiff is appropriate if a "necessary element 

of plaintiff's prima facie case was missing," ibid. "[T]he question of what proofs 

are necessary is inherently within the judge's discretion." See Chakravarti v. 

Pegasus Consulting Grp., Inc., 393 N.J. Super. 203, 210 (App. Div. 2007). The 

record fully supports Judge De La Cruz's well-reasoned determination that 

plaintiff failed to proffer any evidence defendant distributed the contaminated 

crab.
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Affirmed.