On May 2, 2019, the First Department issued a decision in Himmelstein, McConnell, Gribben, Donoghue & Joseph, LLP v. Matthew Bender & Co., Inc., 2019 NY Slip Op. 03442, holding that a publisher’s disclaimer protected it from claims based on alleged inaccuracies in a treatise, explaining:
The breach of express warranty claim, based on the representations defendant made about the content of the Tanbook in the book’s “Overview” and on websites on which the book was sold, was correctly dismissed because the Terms and Conditions pursuant to which defendant sold the Tanbook to plaintiffs contain a merger clause and a disclaimer of warranties, which states, in bold type, “We do not warrant the accuracy, reliability or currentness of the materials contained in the publications”. Contrary to plaintiffs’ contention, this is a specific, not a general, disclaimer. In addition, the complaint fails to allege that plaintiffs relied on the statements that they contend constitute an express warranty. Although this defect was cured with respect to plaintiff law firm by Samuel J. Himmelstein’s affidavit in opposition, it was not cured with respect to the other plaintiffs.
(Internal citations omitted).
A common issue in disputes of the sale of goods is which warranties apply (or have sufficiently been disclaimed). Contact Schlam Stone & Dolan partner John Lundin at firstname.lastname@example.org if you or a client have questions regarding a disclaimer of a warranty.
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