Galkowski-Coira v. The Price Chopper, Inc.

• Decision Date: 23 March 2023
• Docket Number: Index No. 155253/2021,Motion Seq. No. 001
• Citation: 2023 NY Slip Op 30925 (U)
• Parties: ELIZABETH GALKOWSKI-COIRA Plaintiff, v. THE PRICE CHOPPER, INC., Defendant.
• Court: New York Supreme Court

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2023 NY Slip Op 30925(U)

ELIZABETH GALKOWSKI-COIRA Plaintiff, v. THE PRICE CHOPPER, INC., Defendant.

Index No. 155253/2021, Motion Seq. No. 001

Supreme Court, New York County

March 23, 2023

Unpublished Opinion

MOTION DATE 12/20/2021

DECISION+ ORDER ON MOTION

HON DAKOTA D. RAMSEUR, Justice

The following e-filed documents, listed by NYSCEF document number (Motion 001) 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19 20, 21,22, 28, 29 were read on this motion to/for STAY.

Plaintiff Elizabeth Galkowski-Coira (plaintiff), commenced this action pursuant to the General Business Law, for negligent misrepresentation, fraud, breach of warranty, breach of warranty under state and federal Magnuson Moss Warranty Act 15 U.S.C. § 2301, et seq. (MMWA), and for unjust enrichment against defendant, The Price Chopper, Inc. (defendant), stemming from alleged deceptive marketing practices. Defendant now moves pursuant to CPLR 2201 to stay this action pending the resolution of a motion to consolidate this action with another action pending in Suffolk County Supreme Court entitled St. John v The Price Chopper, Inc., Index No. 605458/2021, or in the alternative, pursuant to CPLR 3211(a) to dismiss the amended complaint.^[1] The motion is opposed. For the following reason, defendant's motion is granted.

FACTUAL ALLEGATIONS

Plaintiff commenced this action seeking damages based upon allegedly misleading labelling concerning the source of vanilla flavoring contained in Greek yogurt sold by defendant. Plaintiff alleges that defendant manufactures and distributes a vanilla-flavored Greek-style yogurt under its private label PICS brand (the product) (compl at ¶ 1). The front label of the product appears as follows:

(Image Omitted)

Plaintiff represents a putative class of New York consumers who purchased the product. Plaintiff alleges that defendant misleadingly labeled the product "vanilla," in that the product "may contain a de minimis or negligible amount of natural vanilla, and that the Product's vanilla taste is mostly from non-vanilla, artificial flavor" (NYSCEF doc. no. 12, compl at ¶ 32 [emphasis in original]). Specifically, plaintiff alleges that the product contains artificial vanillin, derived from guaiacol (id. at ¶ 39), and that the product's front label falsely implies that the flavoring is created exclusively with real vanilla (id. ¶¶ 18-19). Plaintiff claims that the product "is sold for a price premium," and that plaintiff "would not have bought the product or would have paid less for it" had she known, as plaintiff alleges, that the product was not made with real vanilla (id. ¶¶ 59-60).

DISCUSSION

On a motion to dismiss pursuant to CPLR 3211(a)(7), the court must "accept the facts as alleged in the complaint as true accord plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Leon v Martinez, 84 N.Y.2d 83. 87-88 [1994]; see also Chapman, Spira &Carson, LLC v Helix BioPharma Corp., 115 A.D.3d 526, 527 [1st Dept 2014]). However, "'factual allegations ... that consist of bare legal conclusions, or that are inherently incredible .... are not entitled to such consideration"' (Mamoon v Dot Net Inc., 135 A.D.3d 656, 658 [1st Dept 2016], quoting Leder v Spiegel, 31 A.D.3d 266, 267 [1st Dept 2006], affd 9 N.Y.3d 836 [2007], cert denied 552 U.S. 1257 [2008]).

New York GBL §§ 349 and 350

In support of the branch of its motion to dismiss plaintiff claims under GBL §§ 349 and 350, defendant first argues that plaintiff fails to allege an injury. Specifically, defendant contends that plaintiffs claim premised on "premium pricing" is contradicted by the fact that the product is priced the same as non-flavored yogurt. Defendant next argues that plaintiff fails to allege a material misrepresentation, since a reasonable consumer would not be misled by the product's label. Defendant contends that the product label depicting the word "vanilla" is not misleading because the consumer receives the product it is seeking to purchase. Defendant further argues that the product label is not misleading because it does not suggest the amount of real vanilla contained in the product. Defendant argues that even if a reasonable consumer was confused about the contents of the product after reading the front label, the ingredient list on the product would disclose the ingredients in the order of predominance in the product. Defendant further argues that plaintiffs "analytical testing" of the product is conclusory and vague, and does not support her claim of misrepresentation. Defendant next argues that plaintiff fails to plead facts demonstrating materiality, since plaintiff fails to allege that any misrepresentation would have been material to an objectively reasonable consumer.

In opposition, plaintiff does not distinguish the cases cited by defendant concerning whether reasonable consumer would distinguish vanilla as an ingredient as opposed to a flavor. Instead, plaintiff argues that the court should not rely on the federal cases finding that a reasonable consumer would not distinguish the product's flavor to be derived mostly from vanilla. Plaintiff next argues that defendant's argument that the violation of federal and state regulations, including Federal Department of Agriculture regulations, are relevant to plaintiff claims. Plaintiff further contends that the ingredient list fails to resolve the misrepresentations by the front label, which, as plaintiff argues, suggests that the product is made with natural vanilla. Plaintiff contends that she did not allege she expected only vanilla, but rather that she believed the product had "a non-negligible amount of extracts from vanilla beans and did not contain artificial flavor" (compl. at ¶ 71). Plaintiff further argues that her allegations concerning artificial flavoring are plausible, in that if vanilla was the exclusive source of flavoring, the ingredient list would state "vanilla extract." Plaintiff next argues that her allegation that she suffered an economic injury is premised on her claim that she paid a higher price for the product.

GBL § 349(a) prohibits deceptive business practices, while section 350 prohibits false advertising. To state a claim under both GBL 349 and 350, a plaintiff must allege that the challenged act or practice was consumer-oriented, that it was misleading in a material way, and that the plaintiff suffered injury as a result of the deceptive act (Koch v Acker, Merrall &Condit Co., 18 N.Y.3d 940, 941 [2012]). An act or omission is materially misleading if it is "likely to mislead a reasonable consumer acting reasonably under the circumstances" (Oswego Laborers' Loc. 214 Pension Fund v Marine Midland Bank, N.A., 85 N.Y.2d 20, 26 [1995]). Further the existence of "deceptive acts and practices" may be determined as a matter of law (id.: Fink v Time Warner Cable, 714 F.3d 739, 741 [2d Cir. 2013] ["It is well settled that a court may determine as a matter of law that an allegedly deceptive advertisement would not have misled a reasonable consumer"]). -

Plaintiff essentially alleges that the product's labeling is misleading because it depicts a flower and vanilla beans, the word "vanilla," and immediately thereunder, the phrase "with other natural flavors," suggesting that the product's flavor is derived from natural vanilla, and not artificial flavors (compl. at¶ 19).

The Court finds that plaintiff failed to allege that the product's label was misleading or otherwise deceptive. A review of the label on the packaging reveals that the label does not claim that the product is made exclusively or even mostly with vanilla. Rather, the label simply indicates that the product is vanilla flavored. The Court finds that the label on the product would not lead a reasonable consumer to conclude that the product is made from vanilla, especially since there is no allegation that the product claims to be made from vanilla. Plaintiff alleges that the product may in fact contain some vanilla, and has a vanilla flavor (compl at ¶¶ 29. 32). "Indeed, numerous courts have similarly concluded with respect to comparable claims about vanilla-flavored products that reasonable consumers associate the word vanilla with a flavor, not an ingredient" (Jones v Orgain, LLC, No. 20 CV 8463, 2021 WL 4392783, at *3 [SD NY Sept. 24, 2021] [internal quotation marks and citations omitted]; see Barreto v Westbrae Nat., Inc., 518 F.Supp.3d 795, 802-803 [SD NY 2021] [dismissing a similar GBL claim where there was "no claim anywhere on the packaging that natural vanilla is the predominant source of the vanilla flavor"]; Wynn v Topco Assocs., LLC, No. 19-CV-l 1104, 2021 WL 168541, at *3 [SD NY Jan. 19, 2021] ["the Court finds that Plaintiffs have failed to plausibly allege that a reasonable customer would in fact conclude that the word 'vanilla' on a product's front label implies that the product's flavoring was derived exclusively from natural vanilla extract, such that the front label would be misleading"]; Twohig v Shop-Rite Supermarkets, Inc., 519 F.Supp.3d 154, 161 [SD NY 2021] [dismissing plaintiffs' claims pursuant to GBL §§ 349 and 350, where "the front label of the Product does not contain qualifying words that would lead a reasonable consumer to believe that vanilla from vanilla beans is the exclusive or predominant flavor ingredient"]; Cosgrove v Oregon Chai, Inc., 520 F.Supp.3d 562, 581 [SD NY 2021] [granting the defendant's motion to dismiss plaintiffs claims under GML §§ 349 and 350 where the word "Vanilla" appearing just below the words "Chai Tea Latte" in a slightly larger font "appears to describe a flavor more than an ingredient - more particularly,, to distinguish the vanilla flavor from Defenda...