Fischer v. Mead Johnson Laboratories
| Citation | 341 N.Y.S.2d 257,41 A.D.2d 737,12 U.C.C.Rep. 68 |
| Parties | , 12 UCC Rep.Serv. 68 Harriet FISCHER et al., Appellants, v. MEAD JOHNSON LABORATORIES, Respondent, et al., Defendants. |
| Decision Date | 05 March 1973 |
| Court | New York Supreme Court Appellate Division |
Before HOPKINS, Acting P.J., and LATHAM, GULOTTA, BRENNAN and BENJAMIN, JJ.
MEMORANDUM BY THE COURT.
In an action to recover damages for personal injuries sustained by plaintiff Harriet Fischer and for medical expenses, etc., of her husband, plaintiffs appeal from an order of the Supreme Court, Queens County, entered June 6, 1972, which granted a motion by defendant Mead Johnson Laboratories to dismiss all the causes of action against it (the first, second, third fourth and eighth causes).
Order modified by deleting from the decretal paragraph thereof the word 'second' and the words 'and eighth' (causes of action) and adding thereto a provision that the motion is denied as to the second and eighth causes of action. As so modified, order affirmed, with $20 costs and disbursements to appellants.
In accordance with her doctor's instructions, Mrs. Fischer began using the oral contraceptive known as oracon, produced by defendant Mead Johnson Laboratories, in the summer of 1966. Thereafter, she developed a blood spot in her left eye, but continued taking the pills until the summer of 1968, when another doctor told her to stop taking them. In an action brought by plaintiffs prior to the instant one, a summons without a complaint was served on defendant Mead Johnson on April 23, 1971 and a complaint was served on May 13, 1971. That action was discontinued. Thereafter, on August 26, 1971, the instant suit was commenced.
Insofar as the motion to dismiss was address to the second cause of action, which sounds in breach of warranty, Mead Johnson claimed that the notice provision of section 2--607 of the Uniform Commercial Code was not complied with in that the first time that Mead Johnson received notice of the alleged breach was in the complaint in the prior action, served upon it a minimum of three years after the cause had accrued and plaintiff's had become aware of the problem. Special Term held this inordinate length of time to be in excess of the time period contemplated by the framers of the Uniform Commercial Code as a matter of law and accordingly dismissed that cause of action.
We think this was error. The prescription of timely notice under the code provision is to be applied, if at all, differently in commercial and...
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Standard Alliance Industries, Inc. v. Black Clawson Co.
...Co., 436 F.Supp. 91, 95-97 (E.D.Tenn.1977). See Cotner v. International Harvester Co., supra. See also Fischer v. Mead Johnson Laboratories, 41 A.D.2d 737, 341 N.Y.S.2d 257 (1973). There is no dispute that Standard Alliance gave timely notice that the machine was not in compliance with the ......
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Compaq Computer Corp. v. Lapray
...the injustice that would be caused to consumers from requiring notice to each person in the chain"); Fischer v. Mead Johnson Labs., 41 A.D.2d 737, 341 N.Y.S.2d 257, 259 (N.Y.App.Div.1973) (timely notice requirement should be overlooked in case involving user of prescription These difference......
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In re Santa Fe Natural Tobacco Co. Mktg. & Sales Practices & Prods. Liab. Litig.
...has eliminated the requirement in "situations involving goods sold for human consumption." Fischer v. Mead Johnson Labs., 41 A.D.2d 737, 737, 341 N.Y.S.2d 257 (N.Y. App. Div. 1973). The decision involves, however, a plaintiff's personal injury, which at least one court has distinguished on ......
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T. J. Stevenson & Co., Inc. v. 81,193 Bags of Flour
...(Tenn.); Cotner v. International Harvester Co., 260 Ark. 885, 545 S.W.2d 627 (1977); Fischer v. Mead Johnson Laboratories, 41 App.Div.2d 737, 341 N.Y.S.2d 257 (2d Dept. 1973).47 There are no decisions by Illinois Courts that are on point, In Overland Bond & Investment Corp. v. Howard, supra......