Opinion
June 6, 1988
Appeal from the Supreme Court, Suffolk County (Gowan, J.).
Ordered that the order and judgment is affirmed insofar as appealed from, with costs.
On December 27, 1984, the plaintiff Theresa Hohn purchased a beef product from the defendant South Shore. She alleges that unbeknownst to her, the beef was contaminated by contact with pork which contained trichina spirulis which had been sold to South Shore by Scaminaci. This plaintiff allegedly ingested the beef product and contracted trichinosis.
The plaintiffs contend that Scaminaci breached an implied warranty of merchantability when she sold the contaminated raw pork to the defendant South Shore. An action for damages caused by the breach of the implied warranty with regard to food may be maintained, at least by the party to whom the warranty is made (McSpedon v Kunz, 271 N.Y. 131). A distributor impliedly warrants that foods sold by description are fit for human consumption and merchantable (see, UCC 2-314 ). Her warranty does not, however, extend to the wholesomeness of raw pork when the pork is intended for ordinary cooking (see, McSpedon v Kunz, supra, at 141 [Lehman, J., dissenting]; Feinstein v Daniel Reeves, Inc., 14 F. Supp. 167).
Nor is it reasonably foreseeable in selling pork to a butcher in the ordinary course of business that he would prepare and sell a product of this kind to be eaten without cooking (see, Dressler v Merkel, Inc., 247 App. Div. 300), or that he would cause it to be combined, uncooked, with another product.
Lastly, we conclude that Agriculture and Markets Law §§ 199-a and 200 were not violated by Scaminaci. Under the facts presented, the raw pork distributed by Scaminaci was not "adulterated" within the meaning of the statute (see, Lucey v Harstedt, 296 N.Y. 810; Blume v Trunz Pork Stores, 269 App. Div. 105 9). Bracken, J.P., Kunzeman, Rubin and Spatt, JJ., concur.