Drake v. Charles of Fifth Avenue, Inc.

Appellate Division of the Supreme Court of New York

Drake v. Charles of Fifth Avenue, Inc.

33 A.D.2d 987, 307 N.Y.S.2d 310, 1970 N.Y. App. Div. LEXIS 5760

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJanuary 15, 1970

StatusPublished

Cited by1 cases

This text of 33 A.D.2d 987 (Drake v. Charles of Fifth Avenue, Inc.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Drake v. Charles of Fifth Avenue, Inc., 33 A.D.2d 987, 307 N.Y.S.2d 310, 1970 N.Y. App. Div. LEXIS 5760 (N.Y. Ct. App. 1970).

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Opinion

Judgment unanimously reversed on the law and facts and new trial granted, with costs, to appellant to abide the event. Memorandum: Plaintiff’s fingers were seriously injured as the result of the application to her fingernails of a product sold to her by respondent. We conclude that the court erred in refusing to charge, as requested, that if the jury found that defendant had expressly warranted that the product was safe for anyone who purchased it then the existence of an allergic reaction thereto was no defense. We agree that such a defense (allergic reaction) is proper as to a cause of action based upon an implied warranty (Kaempfe v. Lehn & Fink Prods. Corp., 21 A D 2d 197, affd. 20 N Y 2d 818). Herein, however, the jury might have found an express warranty (cf. Personal Property Law, § 93) as respondent represented the product to be “ completely safe; ” “used by millions; ” “easy to use; safe.” This broad and positive language in no way alerted a purchaser that there might be a small fraction of potential users who would suffer an allergic reaction to the product not common to the normal person (Spiegel v. Saks 34th St., 43 Misc 2d 1065, affd. 26 A D 2d 660; 3 Frumer & Friedman, Products Liability, § 29.03 [2]). (Appeal from judgment of Monroe Trial Term dismissing complaint in action on warranty.) Present — Goldman, P. J., Marsh, Gabrielli, Moule and Bastow, JJ.

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Judgment unanimously reversed on the law and facts and new trial granted, with costs, to appellant to abide the event. Memorandum: Plaintiff’s fingers were seriously injured as the result of the application to her fingernails of a product sold to her by respondent. We conclude that the court erred in refusing to charge, as requested, that if the jury found that defendant had expressly warranted that the product was safe for anyone who purchased it then the existence of an allergic reaction thereto was no defense. We agree that such a defense (allergic reaction) is proper as to a cause of action based upon an implied warranty (Kaempfe v. Lehn & Fink Prods. Corp., 21 A D 2d 197, affd. 20 N Y 2d 818). Herein, however, the jury might have found an express warranty (cf. Personal Property Law, § 93) as respondent represented the product to be “ completely safe; ” “used by millions; ” “easy to use; safe.” This broad and positive language in no way alerted a purchaser that there might be a small fraction of potential users who would suffer an allergic reaction to the product not common to the normal person (Spiegel v. Saks 34th St., 43 Misc 2d 1065, affd. 26 A D 2d 660; 3 Frumer & Friedman, Products Liability, § 29.03 [2]). (Appeal from judgment of Monroe Trial Term dismissing complaint in action on warranty.) Present — Goldman, P. J., Marsh, Gabrielli, Moule and Bastow, JJ.

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Bluebook (online)

33 A.D.2d 987, 307 N.Y.S.2d 310, 1970 N.Y. App. Div. LEXIS 5760, Counsel Stack Legal Research, https://law.counselstack.com/opinion/drake-v-charles-of-fifth-avenue-inc-nyappdiv-1970.

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