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

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.