604 NYS2d 1020 | N.Y. Sup. Ct. | 1993
OPINION OF THE COURT
By way of motion to dismiss dated April 19, 1993, defendant Bumble Bee Seafood, Inc. moves to dismiss causes of action numbers one and three as set forth in the subject complaint alleging, respectively, (1) breach of implied warranty of merchantability and (2) a violation of Agriculture and Markets Law §§ 199-a and 200. Plaintiff has submitted an opposing affidavit dated June 24, 1993. Defendant has also submitted a reply affirmation dated July 1, 1993.
Plaintiff, in the instant complaint, alleges that he suffered dental injury, i.e., a broken tooth, when he bit down upon a tuna bone, approximately one-half inch in length, which was contained in a can of defendant’s tuna fish. Defendant, relying upon two cases from the California Supreme Court, Mix v Ingersoll Candy Co. (6 Cal 2d 674, 59 P2d 144, 148 [1936]), and Mexicali Rose v Superior Ct. (1 Cal 4th 617, 4 Cal Rptr 2d 145, 822 P2d 1292 [1992]), would have this court dismiss plaintiff’s first cause of action sounding in breach of implied warranty of merchantability under the so-called "foreign/natural” test, defendant’s argument being that a tuna bone is "natural” to tuna and that, therefore, plaintiff should have anticipated the presence of such a bone and thus should not recover upon any theory of breach of implied warranty.
Having reviewed the case law relied upon by both sides, this court is of the view that the proper test to be applied is not the "foreign/natural” test, but rather the "reasonable expectation” standard, whereby a breach of warranty is established "where the consumer is injured by conditions which he could not have reasonably anticipated to be present in the product purchased.” (See, Solow v Wellner, 150 Misc 2d 642, 650 [Civ Ct, NY County 1991, York, J.], citing Stark v Chock Full O’Nuts, 77 Misc 2d 553 [1974] [wherein the Appellate Term, First Department, expressly adopted the "reasonable
Turning then to defendant’s motion to dismiss plaintiff’s third cause of action wherein plaintiff alleges that the presence of a tuna bone in the subject can of tuna fish represents a violation of Agriculture and Markets Law §§ 199-a and 200. Agriculture and Markets Law § 199-a (1) provides as follows: "No person or persons, firm, association or corporation shall within this state manufacture, compound, brew, distill, produce, process, pack, transport, possess, sell, offer or expose for sale, or serve in any hotel, restaurant, eating house or other place of public entertainment any article of food which is adulterated or misbranded within the meaning of this article.”
Section 200 of the Agriculture and Markets Law goes on to provide that: "Food shall be deemed to be adulterated: 1. If it bears or contains any poisonous or deleterious substance which may render it injurious to health; but in case the substance is not an added substance such food shall not be considered adulterated under this subdivision if the quantity of such substance in such food does not ordinarily render it injurious to health.”
It is apparent to this court that the thrust and intent of these sections is to prohibit the sale of impure or contaminated products, and that said sections are not in fact aimed at the presence of foreign objects in the product. (See, i.e., Bourcheix v Willow Brook Dairy, 268 NY 1; Piazza v Fischer Baking Co., 197 Misc 418 [1950], affd 200 Misc 834.) Accordingly, defendant’s motion to dismiss cause of action number three is hereby granted.
