New York’s Appellate Division, First Department recently issued favorable dismissals to a sporting goods retailer and manufacturer in a case alleging issues with an elastic exercise band that injured a person’s right eye in a Union Square store. The plaintiff used the band by placing hard plastic handle ends between his feet and stretching the band upwards. The end of the band slipped out from under the plaintiff’s foot and “projected” into his right eye. The Manhattan-based appellate court modified a trial court order and dismissed a second amended complaint (Firuzzi v. Paragon Sporting Goods Co. LLC, 2023 NY Slip Op 00054 [1st Dept. 2023]).

Bands Background

The retailer, Paragon Sporting Goods, displayed the elastic bands both packaged and unpackaged. The unpackaged bands were available for customer testing. The packaged bands contained various warnings, such as to check the products for wear and tear. However, the plaintiff did not read a warning that consumers should avoid looking directly at the product during exercise.

Liability Theories

The plaintiff originally pled four causes of action: fraud, aiding and abetting fraud, breach of implied warranties, and breach of express warranties in his first amended complaint. However, the plaintiff did not plead the traditional product liability theories of negligence or strict liability in design defect, manufacturing defect, or failure to warn. The trial court granted the defendants’ first motion to dismiss the fraud and warranty allegations. The plaintiff then filed a second amended complaint.

Upon a second pre-answer motion to dismiss, the trial court dismissed the breach of express warranties cause of action, but it allowed the breach of implied warranties cause of action to stand. The Appellate Division modified the decision by dismissing the implied warranty claims, affirming dismissal of the express warranty claims, and directing the clerk enter judgment for the defendants.

Dismissal Grounds

At the outset, the plaintiff did not cite any affirmations of fact or promises by either Paragon Sporting Goods or the manufacturer, Gaiam Americas, Inc., within the amended complaint. Nor did the plaintiff allege he relied on any such statements. Thus, dismissal of express warranty claims was proper.

Moreover, the plaintiff submitted an unsworn expert report, which was inadmissible. Regardless, the plaintiff did not assert a claim for breach of implied warranty for a particular purpose per Uniform Commercial Code § 2-315 in the amended complaint.

Such a claim requires allegations that defendants had reason to know any particular purpose for which goods are used and that plaintiff relied on defendants’ skill or judgment to select or furnish suitable goods. Critically, the plaintiff neither alleged any particular purpose of the exercise band nor that the plaintiff relied upon defendants’ skill in selecting the band.

Further, the plaintiff failed to state a claim for breach of the implied warranty of merchantability per UCC § 314[2][c]. Plaintiffs must allege that goods are defective such that they were not reasonably fit for the ordinary purpose for which they were used, that the defect in the goods was a substantial factor in causing the injury, and that the alleged defect existed at the time the goods left the manufacturer or entity in the line of distribution. The plaintiff did not support his complaint with any factual allegations explaining how the product was not reasonably fit for its intended purpose.


The Appellate Division outcome is an impressive win for the fitness companies. A few takeaways stand out.

First, it is notable that the plaintiff did not assert the typical product liability theories of design defect, manufacturing defect, or failure to warn. That is because the plaintiff sued the manufacturer after the three-year statute of limitations for such claims (See Civil Practice Law and Rules § 214). Having missed the opportunity to bring a traditional product liability action, the plaintiff was relegated to asserting claims of fraud and warranty, which have longer statutes of limitations under New York law.

Second, the plaintiff was not entitled to submit an unsworn expert affidavit to oppose a motion to dismiss based on failure to state a cause of action. An unsworn expert report does not constitute evidence under CPLR Rule 3211. While a court may freely consider affidavits to remedy any complaint defects, it is critical for movants to submit motion materials, and particularly affidavits, in admissible form. Where an expert or witness does not swear to the truth of a statement under the penalties of perjury, New York courts will generally deem the affidavit unsworn and, thus, inadmissible, which can make or break a case. While the Appellate Division mainly took issue with the plaintiff’s defective allegations, the inadmissible expert affidavit afforded no favors in keeping the case alive.

Additionally, it is critical for litigants on both sides of the “v” to pay close attention to, and strictly comply with, the critical elements necessary to establish, or defeat, a particular cause of action. Here, the defendants seized upon precise language that the UCC requires for alleged breaches of express and implied warranties. Indeed, the plaintiff’s failure to plead facts tracing the language of UCC §§ 314 and 315 proved fatal. While perhaps complying with cause of action elements may sound rudimentary in nature, similar dismissal results transpire all too often.

Ultimately, both defendants worked themselves out of the case entirely. Neither the trial court nor the Appellate Division permitted the plaintiff to re-plead after the latest complaint, thereby leaving him without judicial recourse against the named defendants.

Read the full decision here.

If you have any questions about the matters in this Legal Alert or any other legal issues, please contact attorneys Judi Abbott Curry at (212) 313-5404 and; Brendan P. Hall at (212) 912-3635 and; or the Harris Beach attorney with whom you usually work.

This alert does not purport to be a substitute for advice of counsel on specific matters.

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