Opinion
April 6, 1960
Daniel S. Lerner for Cooperdale Dairy Co., Inc., defendant.
George J. Stelboum for plaintiffs.
Motion for an order dismissing the complaint is granted.
"A milk bottle is a simple appliance in ordinary use not inherently dangerous" ( Cullem v. Renken Dairy Co., 247 App. Div. 742 [2d Dept.]; also Smolen v. Grandview Dairy, 301 N.Y. 265). There is no allegation in this complaint based on negligence as to the nature of the defect or to show that, while in the possession of the bottle, the movant, the defendant Cooperdale Dairy Co., should have discovered that defect. The mere fact that the bottle broke when being handled by the plaintiff is not sufficient, for the doctrine of res ipsa loquitur does not apply ( Curley v. Ruppert, Inc., 272 App. Div. 441).