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http://nycourts.law.com/CourtDocumentViewer.asp?view=Document&docID=47160 Judge Mukasey PLAINTIFF SUED defendants on behalf of his son to recover for his son’s death, which resulted from choking on a Pokemon Power Bouncer, a toy ball, that was imported and distributed by Hasbro and sold by Toys “R” Us. Plaintiff asserted claims for strict products liability, breach of warranty, negligence and punitive damages. The court deferred the decision on the part of the negligence claim based on defective design because of its size for further discovery regarding admissibility of expert testimony. The court, however, granted defendants’ summary judgment motion on other claims, finding the breach of warranty claim preempted as based on breach of express warranty argument. The court added that plaintiff could not maintain a cause of action for breach of implied warranty based on the contention that the ball was not minimally safe for insertion into a child’s mouth, noting that the ball’s implied warranty of merchantability does not include a warranty that it is fit for this purpose.

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