Cedano v Aldi Inc. 2026 NY Slip Op 30761(U) March 3, 2026 Supreme Court, New York County Docket Number: Index No. 159688/2024 Judge: Phaedra Perry-Bond Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.
file:///LRB-ALB-FS1/Vol1/ecourts/Process/covers/NYSUP.01596882024.NEW_YORK.001.LBLX038_TO.html[03/12/2026 3:45:51 PM] FILED: NEW YORK COUNTY CLERK 03/03/2026 02:47 PM INDEX NO. 159688/2024 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 03/03/2026
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. PHAEDRA F. PERRY-BOND PART 35 Justice -------------------X INDEX NO. 159688/2024 ERIK CEDANO, TAMMY CUMMINGS, PHYLLIS THOMPSON, KATRINA FRIEBEL, and SHERRIE MOTION DATE 04/03/2025 ROBERTS, individually and on behalf of all others similarly situated MOTION SEQ. NO. 003
Plaintiffs,
- V - DECISION + ORDER ON ALDI INC., MOTION
Defendant.
-------------------X The following e-filed documents, listed by NYSCEF document number (Motion 003} 18, 19, 20, 21, 22, 23,24,26,27,29 were read on this motion to/for DISMISS
Upon the foregoing documents, Defendant's motion to dismiss Plaintiffs' Amended
Complaint is granted.
I. Background
Plaintiffs sue Defendant for selling deceptively labeled microwavable macaroni and
cheese. The specific product in question is called "Express Mac" (hereinafter the "Product") (see
NYSCEF Doc. 17). The Product is sold as a pack of four 2.05-ounce microwavable bowls. The
Product is heavily marketed for its convenience - noting in large font it is "microwaveable"
followed by the representation that the Product is "ready in minutes" and requires the chef to 'just
add water" followed by the advertisement that it is "made with real cheese." Plaintiffs claim the
Product misled them because although it states it is "made with real cheese" the ingredients of
"real cheese" are present in only a de minimis amount. Plaintiffs further allege the Product is sold
at a "premium price" of approximately $3.85 (divided by the four cups of instant macaroni and
159688/2024 CEDANO, ERIK vs. ALDI INC. Page 1 of 5 Motion No. 003
[* 1] 1 of 5 FILED: NEW YORK COUNTY CLERK 03/03/2026 02:47 PM INDEX NO. 159688/2024 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 03/03/2026
cheese, this equates to roughly 96 cents per cup). Based on these allegations, Plaintiffs allege
violations of New York General Business Law ("GBL") §§ 349 and 350.
Defendant moves to dismiss, arguing that GBL § 349 requires the defendant's act or
practice to be deceptive in some material way, and reasonable consumers would not be deceived
in any material way by the "made with real cheese" representation given the context of the Product.
Moreover, Defendant argues the macaroni and cheese at issue is indisputably made with "real
cheese" and consumers can review the ingredient list on the back of the package to ascertain the
amount of cheese in the Product. Plaintiff opposes and argues a reasonable consumer seeing the
"made with real cheese" label would be deceived as they would expect that real cheese was the
predominant or exclusive non-macaroni ingredient. The motion to dismiss is granted.
II. Discussion
When reviewing a pre-answer motion to dismiss for failure to state a claim, the Court must
give the Plaintiff the benefit of all favorable inferences which may be drawn from the pleadings
(Sassi v Mobile Life Support Services, Inc., 37 NY3d 236, 239 [2021]). However, conclusory
allegations or bare legal conclusions with no factual specificity are insufficient (Godfrey v Spano,
13 NY3d 358, 373 [2009]). A motion to dismiss for failure to state a claim will be granted if the
factual allegations do not allow for an enforceable right of recovery (Connaughton v Chipotle
Mexican Grill, Inc., 29 NY3d 137, 142 [2017]). A motion to dismiss based on documentary
evidence is appropriately granted when the documentary evidence utterly refutes the plaintiffs
factual allegations, conclusively establishing a defense as a matter of law (Goshen v Mutual Life
Ins. Co. ofNew York, 98 NY2d 314 [2002]).
The motion to dismiss the GBL §§ 349 and 350 claims is granted. To adequately allege a
deceptive business practice in violation of GBL § 349, a plaintiff must allege ( 1) the complained
159688/2024 CEDANO, ERIK vs. ALDI INC. Page 2 of 5 Motion No. 003
[* 2] 2 of 5 FILED: NEW YORK COUNTY CLERK 03/03/2026 02:47 PM INDEX NO. 159688/2024 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 03/03/2026
of conduct was consumer-oriented; (2) the defendant's act or practice was misleading in a material
way; and (3) injury arising from the deception (see Himmelstein, McConnell, Gribben, Donoghue
& Joseph, LLP, v Matthew Bender & Co., Inc., 37 NY3d 169, 176 [2021]). To constitute a
"material" deception, it must be alleged that the conduct was "likely to mislead a reasonable
consumer acting reasonably under the circumstances" (Mantika v Kellogg Co., 910 F3d 633,636
[2d Cir 2018] citing Oswego Laborers' Local 214 Pension Fund v Marine Midland Bank, NA., 85
NY2d 20, 25-27 [1995]). The "under the circumstances" part of the "materiality" test requires an
analysis of the allegedly deceptive act in the context of the product, and in conducting this analysis
the Court may determine as a matter of law that an allegedly deceptive advertisement would not
have misled a reasonable consumer (Fink v Time Warner Cable, 714 F3d 739, 741 [2d Cir. 2013]
citing Oswego, supra at 26). "[A] party does not violate GBL 349 by simply publishing truthful
information and allowing consumers to make their own assumptions about the nature of the
information" (see Gomez-Jimenez v New York Law School, 103 AD3d 12, 17 [1st Dept 2012]).
As a preliminary matter, there is no dispute that the Product contains "real cheese"
(specifically cheddar cheese) - this lawsuit is instead over whether there is so little "real cheese"
in the Product that the "made with real cheese" advertisement on the packaging is materially
deceptive. By placing itself in the shoes of a reasonable consumer, the Court finds the Product's
"made with real cheese" advertisement is not materially misleading (see also Raphael v Schwan 's
Consumer Brands, Inc., 87 Misc.3d 1260[A] [Sup. Ct., Kings County 2025] [Maslow, J.] [granting
motion to dismiss on GBL §§ 349-350 based on allegedly de minimis amount of cream cheese
included in whipped cheesecake desert]). This is especially the case because the Product was not
refrigerated and does not even appear to have an expiration date, indicating it would be almost
impossible for the Product to contain large amounts of real and fresh cheese.
159688/2024 CEDANO, ERIK vs. ALDI INC. Page 3 of5 Motion No. 003
[* 3] 3 of 5 FILED: NEW YORK COUNTY CLERK 03/03/2026 02:47 PM INDEX NO. 159688/2024 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 03/03/2026
As held by the First Department, when the GBL § 349 violation is predicated on a truthful
statement, consumers can make their own assumptions about the nature of that statement (Gomez-
Jimenez v New York Law School, 103 AD3d 13, 17 [1st Dept 2012]). No reasonable consumer
purchasing a four-pack of instant microwavable macaroni & cheese that sells for under $1 a cup,
Free access — add to your briefcase to read the full text and ask questions with AI
Cedano v Aldi Inc. 2026 NY Slip Op 30761(U) March 3, 2026 Supreme Court, New York County Docket Number: Index No. 159688/2024 Judge: Phaedra Perry-Bond Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.
file:///LRB-ALB-FS1/Vol1/ecourts/Process/covers/NYSUP.01596882024.NEW_YORK.001.LBLX038_TO.html[03/12/2026 3:45:51 PM] FILED: NEW YORK COUNTY CLERK 03/03/2026 02:47 PM INDEX NO. 159688/2024 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 03/03/2026
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. PHAEDRA F. PERRY-BOND PART 35 Justice -------------------X INDEX NO. 159688/2024 ERIK CEDANO, TAMMY CUMMINGS, PHYLLIS THOMPSON, KATRINA FRIEBEL, and SHERRIE MOTION DATE 04/03/2025 ROBERTS, individually and on behalf of all others similarly situated MOTION SEQ. NO. 003
Plaintiffs,
- V - DECISION + ORDER ON ALDI INC., MOTION
Defendant.
-------------------X The following e-filed documents, listed by NYSCEF document number (Motion 003} 18, 19, 20, 21, 22, 23,24,26,27,29 were read on this motion to/for DISMISS
Upon the foregoing documents, Defendant's motion to dismiss Plaintiffs' Amended
Complaint is granted.
I. Background
Plaintiffs sue Defendant for selling deceptively labeled microwavable macaroni and
cheese. The specific product in question is called "Express Mac" (hereinafter the "Product") (see
NYSCEF Doc. 17). The Product is sold as a pack of four 2.05-ounce microwavable bowls. The
Product is heavily marketed for its convenience - noting in large font it is "microwaveable"
followed by the representation that the Product is "ready in minutes" and requires the chef to 'just
add water" followed by the advertisement that it is "made with real cheese." Plaintiffs claim the
Product misled them because although it states it is "made with real cheese" the ingredients of
"real cheese" are present in only a de minimis amount. Plaintiffs further allege the Product is sold
at a "premium price" of approximately $3.85 (divided by the four cups of instant macaroni and
159688/2024 CEDANO, ERIK vs. ALDI INC. Page 1 of 5 Motion No. 003
[* 1] 1 of 5 FILED: NEW YORK COUNTY CLERK 03/03/2026 02:47 PM INDEX NO. 159688/2024 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 03/03/2026
cheese, this equates to roughly 96 cents per cup). Based on these allegations, Plaintiffs allege
violations of New York General Business Law ("GBL") §§ 349 and 350.
Defendant moves to dismiss, arguing that GBL § 349 requires the defendant's act or
practice to be deceptive in some material way, and reasonable consumers would not be deceived
in any material way by the "made with real cheese" representation given the context of the Product.
Moreover, Defendant argues the macaroni and cheese at issue is indisputably made with "real
cheese" and consumers can review the ingredient list on the back of the package to ascertain the
amount of cheese in the Product. Plaintiff opposes and argues a reasonable consumer seeing the
"made with real cheese" label would be deceived as they would expect that real cheese was the
predominant or exclusive non-macaroni ingredient. The motion to dismiss is granted.
II. Discussion
When reviewing a pre-answer motion to dismiss for failure to state a claim, the Court must
give the Plaintiff the benefit of all favorable inferences which may be drawn from the pleadings
(Sassi v Mobile Life Support Services, Inc., 37 NY3d 236, 239 [2021]). However, conclusory
allegations or bare legal conclusions with no factual specificity are insufficient (Godfrey v Spano,
13 NY3d 358, 373 [2009]). A motion to dismiss for failure to state a claim will be granted if the
factual allegations do not allow for an enforceable right of recovery (Connaughton v Chipotle
Mexican Grill, Inc., 29 NY3d 137, 142 [2017]). A motion to dismiss based on documentary
evidence is appropriately granted when the documentary evidence utterly refutes the plaintiffs
factual allegations, conclusively establishing a defense as a matter of law (Goshen v Mutual Life
Ins. Co. ofNew York, 98 NY2d 314 [2002]).
The motion to dismiss the GBL §§ 349 and 350 claims is granted. To adequately allege a
deceptive business practice in violation of GBL § 349, a plaintiff must allege ( 1) the complained
159688/2024 CEDANO, ERIK vs. ALDI INC. Page 2 of 5 Motion No. 003
[* 2] 2 of 5 FILED: NEW YORK COUNTY CLERK 03/03/2026 02:47 PM INDEX NO. 159688/2024 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 03/03/2026
of conduct was consumer-oriented; (2) the defendant's act or practice was misleading in a material
way; and (3) injury arising from the deception (see Himmelstein, McConnell, Gribben, Donoghue
& Joseph, LLP, v Matthew Bender & Co., Inc., 37 NY3d 169, 176 [2021]). To constitute a
"material" deception, it must be alleged that the conduct was "likely to mislead a reasonable
consumer acting reasonably under the circumstances" (Mantika v Kellogg Co., 910 F3d 633,636
[2d Cir 2018] citing Oswego Laborers' Local 214 Pension Fund v Marine Midland Bank, NA., 85
NY2d 20, 25-27 [1995]). The "under the circumstances" part of the "materiality" test requires an
analysis of the allegedly deceptive act in the context of the product, and in conducting this analysis
the Court may determine as a matter of law that an allegedly deceptive advertisement would not
have misled a reasonable consumer (Fink v Time Warner Cable, 714 F3d 739, 741 [2d Cir. 2013]
citing Oswego, supra at 26). "[A] party does not violate GBL 349 by simply publishing truthful
information and allowing consumers to make their own assumptions about the nature of the
information" (see Gomez-Jimenez v New York Law School, 103 AD3d 12, 17 [1st Dept 2012]).
As a preliminary matter, there is no dispute that the Product contains "real cheese"
(specifically cheddar cheese) - this lawsuit is instead over whether there is so little "real cheese"
in the Product that the "made with real cheese" advertisement on the packaging is materially
deceptive. By placing itself in the shoes of a reasonable consumer, the Court finds the Product's
"made with real cheese" advertisement is not materially misleading (see also Raphael v Schwan 's
Consumer Brands, Inc., 87 Misc.3d 1260[A] [Sup. Ct., Kings County 2025] [Maslow, J.] [granting
motion to dismiss on GBL §§ 349-350 based on allegedly de minimis amount of cream cheese
included in whipped cheesecake desert]). This is especially the case because the Product was not
refrigerated and does not even appear to have an expiration date, indicating it would be almost
impossible for the Product to contain large amounts of real and fresh cheese.
159688/2024 CEDANO, ERIK vs. ALDI INC. Page 3 of5 Motion No. 003
[* 3] 3 of 5 FILED: NEW YORK COUNTY CLERK 03/03/2026 02:47 PM INDEX NO. 159688/2024 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 03/03/2026
As held by the First Department, when the GBL § 349 violation is predicated on a truthful
statement, consumers can make their own assumptions about the nature of that statement (Gomez-
Jimenez v New York Law School, 103 AD3d 13, 17 [1st Dept 2012]). No reasonable consumer
purchasing a four-pack of instant microwavable macaroni & cheese that sells for under $1 a cup,
and requires only water be added to it, would assume the Product contains predominantly real
cheese. (see also Gay v Walmart, Inc., 2026 WL 26711 at *3 [Sup. Ct., Westchester County 2026]
[Clerkin, J.]). This is especially the case since the ingredient list clearly shows the prominence of
cheese in the product, and where cheese powder containing cheddar cheese is listed second on the
ingredient list (see also Davis v Schwan 's Consumer Brands, Inc., 742 F.Supp.3d 400, 408-409
[SDNY 2024] [unreasonable for plaintiff to interpret statements about butter to mean there is more
butter in the crust than other shortening]). Nor is there any representation that the Product contains
misleading data about the quantity ofreal cheese in it (see Corcino v Fi/stein, 32 AD3d 201, 201-
202 [1st Dept 2006] [GBL § 349 claim dismissed where noting in advertisement was false or
misleading, such as misleading statistics]). Therefore, the alleged violations of GBL § 349 fail as
a matter of law.
The GBL § 350 claim is likewise dismissed. A GBL § 350 claim mirrors a GBL § 349
claim in that both claims require an allegedly deceptive act or practice that is "likely to mislead a
reasonable consumer acting reasonably under the circumstances" (see Scott v Bell Atlantic Corp.,
282 AD2d 180, 183-184 [1st Dept 2001]). Because Plaintiffs fail to allege a reasonable consumer
purchasing the Product would reasonably believe that the Product, microwavable instant macaroni
& cheese selling for under $1 a cup, contains mainly real cheese, the GBL § 350 claim is also
dismissed.
159688/2024 CEDANO, ERIK vs. ALDI INC. Page 4 of 5 Motion No. 003
[* 4] 4 of 5 FILED: NEW YORK COUNTY CLERK 03/03/2026 02:47 PM INDEX NO. 159688/2024 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 03/03/2026
Accordingly, it is hereby,
ORDERED that Defendant's motion to dismiss Plaintiffs' Amended Complaint is granted,
and the Amended Complaint is hereby dismissed; and it is further
ORDERED that within ten days of entry, counsel for Defendant shall serve a copy of this
Decision and Order, with notice of entry, on all parties via NYSCEF.
This constitutes the Decision and Order of the Co
DATE CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION
GRANTED □ DENIED GRANTED IN PART □ OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE
159688/2024 CEDANO, ERIK vs. ALDI INC. Page 5 of 5 Motion No. 003
[* 5] 5 of 5