`FILED:
`JEFFERSON COUNTY CLERK 04m2021 11:45 ‘
`I
`NYSCEF DOC. NO.
`2
`NYSCEF DOC. NO. 2
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`INDEX NO. EF2021-00000810
`INDEX NO- EF2021-00000810
`RECEIVED NYSCEF: 04/08/2021
`RECEIVED NYSCEF: 04/08/2021
`
`STATE OF NEW YORK
`
`SUPREME COURT : COUNTY OF JEFFERSON
`
`
`GREAT LAKES CHEESE CO., INC.; and
`
`GREAT LAKES CHEESE OF NEW YORK, INC.
`
`Plaintiffs,
`
`v.
`
`Index No.
`
`CARGILL, INCORPORATED;
`G & L TRUCKING, INC.; and
`
`KUHNLE BROTHERS, INC.
`
`Defendants.
`
`VERIFIED COMPLAINT
`
`Plaintiffs Great Lakes Cheese Co., Inc. and Great Lakes Cheese of New York,
`
`Inc. (collectively “Plaintiffs”) allege for their complaint:
`
`1.
`
`Plaintiff Great Lakes Cheese Co., Inc. (“GLC” or “Plaintiff’) is an Ohio
`
`business corporation with its principal place of business located at 17825 Great Lakes Parkway,
`
`Hiram, Ohio 44234.
`
`2.
`
`Plaintiff Great Lakes Cheese of New York, Inc. (“GLCNY” or “Plaintiff’)
`
`is a domestic business corporation with its principal place of business located at 23 Phelps Street,
`
`Adams, New York.
`
`3.
`
`Upon information and belief, defendant Cargill, Incorporated (“Cargill”) is
`
`a foreign business corporation authorized to do business in the State of New York, with its
`
`principal place of business at 15407 McGinty Road W, Wayzata, Minnesota.
`
`10f 22
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`FILED: JEFFERSON COUNTY CLERK 04/08/2021 11:45 AM
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`I
`NYSCEF DOC. NO.
`2
`NYSCEF DOC. NO. 2
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`INDEX NO. EF2021-00000810
`INDEX NO- EF2021-00000810
`RECEIVED NYSCEF: 04/08/2021
`RECEIVED NYSCEF: 04/08/2021
`
`4.
`
`Upon information and belief, defendant G & L Trucking, Inc. (“G&L”) is
`
`a domestic business corporation with its principal place of business at 165 Locke Road, Locke,
`
`New York.
`
`5.
`
`Upon information and belief, defendant Kuhnle Brothers, Inc. (“Kuhnle”)
`
`is a foreign business corporation authorized to do business in the State of New York, with its
`
`principal place of business at 14905 Cross Creek, Newbury, Ohio.
`
`Jurisdiction and Venue
`
`6.
`
`This Court has jurisdiction over Cargill because, among other reasons, this
`
`matter arises from Cargill’s transaction of business within New York and its contract to supply
`
`goods or services in New York.
`
`7.
`
`This Court has jurisdiction over G&L because, among other reasons, G&L
`
`is domiciled in New York.
`
`8.
`
`The Court has jurisdiction over Kuhnle because, among other reasons, this
`
`matter arises from Kuhnle’s transaction of business within New York and its contract to supply
`
`goods or services in New York.
`
`9.
`
`Venue is proper in Jefferson County because, among other reasons, a
`
`substantial part of the events or omissions giving rise to Plaintiffs’ claims occurred in Jefferson
`
`County.
`
`Factual Allegations
`
`10.
`
`Plaintiffs own and operate a cheese production facility in Adams, New
`
`York (the “Adams facility”).
`
`20f22
`2 of 22
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`NYSCEF DOC. NO.
`2
`NYSCEF DOC. NO. 2
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`INDEX NO. EF2021-00000810
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`
`11. Within that facility is a bulk salt silo from which Plaintiffs draw food
`
`grade salt used in the manufacture of cheese products.
`
`12.
`
`At all relevant times, Cargill has been engaged in the business of
`
`manufacturing, distributing, and selling salt and salt products in the State of New York.
`
`13.
`
`At all relevant times, Cargill was the exclusive supplier of food grade salt
`
`used at the Adams facility.
`
`14.
`
`At all relevant times, Kuhnle was engaged in the business of hauling bulk
`
`loads in the State of New York.
`
`15.
`
`At all relevant times, G&L was engaged in the business of hauling bulk
`
`loads in the State of New York.
`
`The January 2020 Incident
`
`16.
`
`As of January 20, 2020, the salt silo at the Adams facility contained salt
`
`supplied exclusively by Cargill.
`
`17.
`
`Under the terms of Plaintiffs’ agreement with Cargill, Cargill was required
`
`to arrange and pay for shipment of that salt free on board to the Adams facility.
`
`18.
`
`The materials present in the salt silo at the Adams facility as of January
`
`20, 2020 were delivered and deposited there exclusively by G&L.
`
`19.
`
`On or about January 20, 2020, Plaintiffs contracted with Cargill for the
`
`supply of approximately 46,022 pounds of food grade salt to the Adams facility (hereafter the
`
`30f 22
`3 of 22
`
`
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`FILED: JEFFERSON COUNTY CLERK 04/08/2021 11:45 AM
`FILED:
`JEFFERSON COUNTY CLERK 04m2021 11:45 ‘
`I
`NYSCEF DOC. NO.
`2
`NYSCEF DOC. NO. 2
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`INDEX NO. EF2021-00000810
`INDEX NO- EF2021-00000810
`RECEIVED NYSCEF: 04/08/2021
`RECEIVED NYSCEF: 04/08/2021
`
`“January salt order”)(the existing salt and January salt order collectively the “salt involved in the
`
`January incident”).
`
`20.
`
`Under the terms of the parties’ agreement, Cargill was required to arrange
`
`and pay for shipment of the January salt order free on board to the Adams facility.
`
`21.
`
`Cargill retained Kuhnle to transport the January salt order from Cargill’s
`
`facility to the Adams facility.
`
`22.
`
`Upon information and belief, Cargill required G&L and Kuhnle to certify
`
`that their trucks were clean and sanitized for food grade materials before being loaded with salt
`
`orders at Cargill’s facility.
`
`23.
`
`Upon information and belief, Cargill directed or controlled the manner and
`
`method in which G&L and Kuhnle cleaned and sanitized their trucks before being loaded with
`
`salt orders at Cargill’s facility.
`
`24.
`
`Upon information and belief, Cargill inspected and/or approved the
`
`condition of G&L and Kuhnle’s trucks before they were loaded with salt orders at Cargill’s
`
`facility.
`
`25.
`
`Upon information and belief, Cargill directed or controlled the manner and
`
`method in which G&L and Kuhnle loaded their trucks with salt orders at Cargill’s facility.
`
`26.
`
`Upon information and belief, Cargill inspected and/or approved the
`
`condition of G&L’s and Kuhnle’s trucks after they were loaded with salt orders at Cargill’s
`
`facility.
`
`4of22
`4 of 22
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`FILED: JEFFERSON COUNTY CLERK 04/08/2021 11:45 AM
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`I
`NYSCEF DOC. NO.
`2
`NYSCEF DOC. NO. 2
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`INDEX NO. EF2021-00000810
`INDEX NO- EF2021—00000810
`RECEIVED NYSCEF: 04/08/2021
`RECEIVED NYSCEF: 04/08/2021
`
`27.
`
`On or about January 20, 2020, Kuhnle transported the January salt order
`
`from Cargill’s facility to the Adams facility, and deposited the January salt order into the salt silo
`
`at the Adams facility.
`
`28.
`
`Other than providing access to the deposit port, Plaintiffs did not control
`
`or participate in the manufacture, loading, transportation, or deposit of the salt existing in the
`
`Adams facility silo before delivery of the January salt order.
`
`29.
`
`Other than providing access to the deposit port, Plaintiffs did not control
`
`or participate in the manufacture, loading, transportation, or deposit of the January salt order into
`
`the Adams facility silo.
`
`30.
`
`On or about January 21 and 22, 2020, after Kuhnle deposited the January
`
`salt order into the Adams facility silo, Plaintiffs discovered rocks and/or pebbles on the Adams
`
`facility salt belt, in its salt auger, and in the salt flow as the bulk salt tank was emptied from salt
`
`distribution.
`
`31.
`
`Upon information and belief, the existing salt in the salt silo before
`
`delivery of the January salt order was contaminated with the rocks.
`
`32.
`
`In the alternative, upon information and belief, the January salt order was
`
`contaminated with the rocks at the time it was loaded into Kuhnle’s truck.
`
`33.
`
`In the alternative, the January salt order became contaminated with the
`
`rocks at the time it was loaded into Kuhnle’s truck.
`
`50f 22
`5 of 22
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`FILED: JEFFERSON COUNTY CLERK 04/08/2021 11:45 AM
`FILED:
`JEFFERSON COUNTY CLERK 04m2021 11:45 ‘
`I
`NYSCEF DOC. NO.
`2
`NYSCEF DOC. NO. 2
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`INDEX NO. EF2021-00000810
`INDEX NO- EF2021-00000810
`RECEIVED NYSCEF: 04/08/2021
`RECEIVED NYSCEF: 04/08/2021
`
`34.
`
`In the alternative, the January salt order became contaminated with the
`
`rocks between the time it was loaded into Kuhnle’s truck and the time it was deposited in the
`
`Adams facility salt silo.
`
`35.
`
`The salt existing in the Adams facility salt silo before delivery of the
`
`January salt order became contaminated with the rocks through the acts or omissions of Cargill,
`
`before it was finally deposited into the Adams facility salt silo.
`
`36.
`
`The salt existing in the Adams facility salt silo before delivery of the
`
`January salt order became contaminated with the rocks through the acts or omissions of G&L,
`
`before it was finally deposited into the Adams facility salt silo.
`
`37.
`
`The January salt order became contaminated with the rocks through the
`
`acts or omissions of Cargill, before the salt was finally deposited into the Adams facility salt silo.
`
`38.
`
`The January salt order became contaminated with the rocks through the
`
`acts or omissions of Kuhnle, before the salt was finally deposited into the Adams facility salt
`
`silo.
`
`39.
`
`Plaintiffs’ acts or omissions did not cause any contamination of the salt
`
`existing in the Adams facility salt silo before delivery of the January salt order.
`
`40.
`
`Plaintiffs’ acts or omissions did not cause any contamination of January
`
`salt order before or after delivery of the January salt order.
`
`60f 22
`6 of 22
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`
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`FILED: JEFFERSON COUNTY CLERK 04/08/2021 11:45 AM
`FILED:
`JEFFERSON COUNTY CLERK 04m2021 11:45 ‘
`I
`NYSCEF DOC. NO.
`2
`NYSCEF DOC. NO. 2
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`INDEX NO. EF2021-00000810
`INDEX NO- EF2021-00000810
`RECEIVED NYSCEF: 04/08/2021
`RECEIVED NYSCEF: 04/08/2021
`
`41.
`
`Because Cargill, G&L, and Kuhnle were collectively in exclusive control
`
`of the salt involved in the January incident at all relevant times, their culpable conduct in causing
`
`the contamination can be presumed under the theory of res ipsa loquitur.
`
`42.
`
`The presence of the rocks contaminated Plaintiffs’ manufacturing process
`
`and caused significant adulteration, diminution, and complete loss in value of Plaintiffs’ finished
`
`cheese products.
`
`43.
`
`Plaintiffs have been and will be required to undertake costs of determining
`
`whether any finished product contaminated by the rocks is salvageable.
`
`44.
`
`If any of the finished product contaminated by the rocks is salvageable,
`
`Plaintiffs will be required to undertake the cost of transporting, storing, processing and selling
`
`that product at a reduced price as “processed” cheese, all to Plaintiffs’ damage.
`
`45.
`
`If required to dispose of any or all the finished cheese product
`
`contaminated by the rocks, Plaintiffs will suffer a complete loss in value of that product, and will
`
`also incur labor, transportation, and disposal costs for the disposition of the product, all to
`
`Plaintiffs’ damage.
`
`46.
`
`On or about March 11, 2020, Plaintiffs submitted a formal claim for losses
`
`to Cargill, demanding that Cargill compensate them for the damages sustained as a result of the
`
`contamination in January.
`
`47.
`
`To date, Cargill has refused to compensate Plaintiffs for their damages.
`
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`FILED: JEFFERSON COUNTY CLERK 04/08/2021 11:45 AM
`FILED:
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`I
`NYSCEF DOC. NO.
`2
`NYSCEF DOC. NO. 2
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`INDEX NO. EF2021-00000810
`INDEX NO- EF2021-00000810
`RECEIVED NYSCEF: 04/08/2021
`RECEIVED NYSCEF: 04/08/2021
`
`The August 2020 Incident
`
`48.
`
`As of August 26, 2020, the salt silo at the Adams facility contained salt
`
`supplied exclusively by Cargill.
`
`49.
`
`Under the terms of Plaintiffs’ agreement with Cargill, Cargill was required
`
`to arrange and pay for shipment of that salt free on board to the Adams facility.
`
`50.
`
`The materials present in the salt silo at the Adams facility as of August 26,
`
`2020 were delivered and deposited there exclusively by G&L.
`
`51.
`
`On or about August 26, 2020, Plaintiffs contracted with Cargill for the
`
`supply of approximately 50,014 pounds of food grade salt to the Adams facility (hereafter the
`
`“August salt order”)(the existing salt and August salt order collectively the “salt involved in the
`
`August incident”).
`
`52.
`
`Under the terms of the parties’ agreement, Cargill was required to arrange
`
`for and pay for shipment of the August salt order free on board to the Adams facility.
`
`53.
`
`Cargill retained G&L to transport the August salt order from Cargill’s
`
`facility to the Adams facility.
`
`54.
`
`Upon information and belief, Cargill required G&L to certify that its truck
`
`was clean and sanitized for food grade materials before being loaded with salt orders at Cargill’s
`
`facility.
`
`55.
`
`Upon information and belief, Cargill directed or controlled the manner and
`
`method in which G&L cleaned and sanitized its truck before being loaded salt orders at Cargill’s
`
`facility.
`
`80f 22
`8 of 22
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`FILED: JEFFERSON COUNTY CLERK 04/08/2021 11:45 AM
`FILED:
`JEFFERSON COUNTY CLERK 04m2021 11:45 ‘
`I
`NYSCEF DOC. NO.
`2
`NYSCEF DOC. NO. 2
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`INDEX NO. EF2021-00000810
`INDEX NO- EF2021-00000810
`RECEIVED NYSCEF: 04/08/2021
`RECEIVED NYSCEF: 04/08/2021
`
`56.
`
`Upon information and belief, Cargill inspected and/or approved the
`
`condition of G&L’s truck before it was loaded with salt orders at Cargill’s facility.
`
`57.
`
`Upon information and belief, Cargill directed or controlled the manner and
`
`method in which G&L loaded its truck with salt orders at Cargill’s facility.
`
`58.
`
`Upon information and belief, Cargill inspected and/or approved the
`
`condition of G&L’s truck after it was loaded with salt orders at Cargill’s facility.
`
`59.
`
`On or about August 27, 2020, G&L transported the August salt order from
`
`Cargill’s facility to the Adams facility, and deposited the August salt order into the salt silo at the
`
`Adams facility.
`
`60.
`
`Other than providing access to the deposit port, Plaintiffs did not control
`
`or participate in the manufacture, loading, transportation, or deposit of the salt existing in the
`
`Adams facility silo before delivery of the August salt order.
`
`61.
`
`Other than providing access to the deposit port, Plaintiffs did not control
`
`or participate in the manufacture, loading, transportation, or deposit of the August salt order into
`
`the Adams facility silo.
`
`62.
`
`On or about August 27, 2020, after G&L deposited the August salt order
`
`into the Adams facility silo, Plaintiffs discovered large crystals of salt, a mixture of regular salt
`
`and large pieces of rock salt, plugging up salt hoppers and salt lines.
`
`63.
`
`Upon information and belief, the existing salt in the salt silo before
`
`delivery of the August salt order was contaminated with rock salt.
`
`90f 22
`9 of 22
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`FILED: JEFFERSON COUNTY CLERK 04/08/2021 11:45 AM
`FILED:
`JEFFERSON COUNTY CLERK 04m2021 11:45 ‘
`I
`NYSCEF DOC. NO.
`2
`NYSCEF DOC. NO. 2
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`INDEX NO. EF2021-00000810
`INDEX NO- EF2021-00000810
`RECEIVED NYSCEF: 04/08/2021
`RECEIVED NYSCEF: 04/08/2021
`
`64.
`
`In the alternative, upon information and belief, the August salt order was
`
`contaminated with rock salt or otherwise non-food grade salt at the time it was loaded into
`
`G&L’s truck.
`
`65.
`
`In the alternative, upon information and belief, the August salt order
`
`became contaminated with rock salt or otherwise non-food grade salt at the time it was loaded
`
`into G&L’s truck, or between that time and the time it was deposited in the Adams facility salt
`
`silo.
`
`66.
`
`The salt existing in the Adams facility salt silo before delivery of the
`
`August salt order became contaminated with rock salt or otherwise non-food grade salt through
`
`the acts or omissions of Cargill, before it was finally deposited into the Adams facility salt silo.
`
`67.
`
`The salt existing in the Adams facility salt silo before delivery of the
`
`August salt order became contaminated with rock salt or otherwise non-food grade salt through
`
`the acts or omissions of G&L, before it was finally deposited into the Adams facility salt silo.
`
`68.
`
`The August salt order became contaminated with rock salt or otherwise
`
`non-food grade salt through the acts or omissions of Cargill, before the salt was finally deposited
`
`into the Adams facility salt silo.
`
`69.
`
`The August salt order became contaminated with rock salt or otherwise
`
`non-food grade salt through the acts or omissions of G&L, before the salt was finally deposited
`
`into the Adams facility salt silo.
`
`70.
`
`Plaintiffs’ acts or omissions did not cause any contamination of the salt
`
`existing in the Adams facility salt silo before delivery of the August salt order.
`
`10 of 22
`10 of 22
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`FILED: JEFFERSON COUNTY CLERK 04/08/2021 11:45 AM
`FILED:
`JEFFERSON COUNTY CLERK 04m2021 11:45 ‘
`I
`NYSCEF DOC. NO.
`2
`NYSCEF DOC. NO. 2
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`INDEX NO. EF2021-00000810
`INDEX NO- EF2021—00000810
`RECEIVED NYSCEF: 04/08/2021
`RECEIVED NYSCEF: 04/08/2021
`
`71.
`
`Plaintiffs’ acts or omissions did not cause any contamination of the
`
`August salt order.
`
`72.
`
`Because Cargill and G&L were collectively in exclusive control of the salt
`
`involved in the August incident at all relevant times, their culpable conduct in causing the
`
`contamination can be presumed under the theory of res ipsa loquitur.
`
`73.
`
`The presence of rock salt or otherwise non-food grade salt contaminated
`
`Plaintiffs’ manufacturing process and caused significant adulteration, diminution, and complete
`
`loss in value of Plaintiffs’ finished cheese products.
`
`74.
`
`The finished cheese product contaminated by the rock salt or otherwise
`
`non-food grade salt cannot be salvaged.
`
`75.
`
`Plaintiffs have incurred costs for storage of the finished cheese product
`
`contaminated by the rock salt or otherwise non-food grade salt pending disposition, which they
`
`would not have incurred if the product had not been contaminated.
`
`76.
`
`If required to dispose of any or all the finished cheese product
`
`contaminated by the rock salt or otherwise non-food grade salt, Plaintiffs will suffer a complete
`
`loss in value of that product, and will also incur labor, transportation, and disposal costs for the
`
`disposition of the product, all to Plaintiffs’ damage.
`
`77.
`
`On or about September 23, 2020, Plaintiffs submitted a formal claim for
`
`losses to Cargill, demanding that Cargill compensate them for the damages sustained as a result
`
`of the contamination in August.
`
`11 of 22
`11 of 22
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`FILED: JEFFERSON COUNTY CLERK 04/08/2021 11:45 AM
`FILED:
`JEFFERSON COUNTY CLERK 04m2021 11:45 ‘
`I
`NYSCEF DOC. NO.
`2
`NYSCEF DOC. NO. 2
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`INDEX NO. EF2021-00000810
`INDEX NO- EF2021-00000810
`RECEIVED NYSCEF: 04/08/2021
`RECEIVED NYSCEF: 04/08/2021
`
`78.
`
`To date, Cargill has refused to compensate Plaintiffs for their damages.
`
`(Breach of Implied Warranty of Merchantability Against Cargill — January Incident)
`
`FIRST CAUSE OF ACTION
`
`79.
`
`Plaintiffs repeat and reallege the allegations contained in paragraphs 1
`
`through 78.
`
`80.
`
`Cargill is a merchant with respect to salt products, including without
`
`limitation food grade salt.
`
`8 l.
`
`The salt involved in the January incident supplied by Cargill to Plaintiffs
`
`was contaminated and therefore not of merchantable quality as (a) the salt did not pass without
`
`objection in the trade under the contract description; (b) the salt was not of fair or average quality
`
`within the description; (c) the salt was not fit for ordinary purposes for which the salt is used; (d)
`
`the salt did not run, within the variations permitted by the parties’ agreement, of even kind,
`
`quality and quantity within each unit and among all units involved; and/or (e) the salt did not
`
`conform to the promises or affirrnations of fact made by Cargill.
`
`82.
`
`Cargill’s supply of the salt involved in the January incident was a breach
`
`of the implied warranty of merchantability set forth in NY. U.C.C. § 2-314.
`
`83.
`
`Cargill did not exclude or modify the implied warranty of merchantability.
`
`84.
`
`Plaintiffs suffered damage to their finished cheese products as a result of
`
`using the defective, adulterated, and contaminated salt supplied by Cargill.
`
`12 of 22
`12 of 22
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`FILED: JEFFERSON COUNTY CLERK 04/08/2021 11:45 AM
`FILED:
`JEFFERSON COUNTY CLERK 04m2021 11:45 ‘
`I
`NYSCEF DOC. NO.
`2
`NYSCEF DOC. NO. 2
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`INDEX NO. EF2021-00000810
`INDEX NO- EF2021—00000810
`RECEIVED NYSCEF: 04/08/2021
`RECEIVED NYSCEF: 04/08/2021
`
`85.
`
`Plaintiffs promptly, seasonably, and reasonably notified Cargill that the
`
`salt involved in the January incident was non-conforming within a reasonable time after
`
`discovery of the breach, or when a reasonable person should have discovered the breach.
`
`86.
`
`Cargill’s breach of warranty caused damage to Plaintiffs in an amount to
`
`be proven at trial, and in no event less than $1,882,503.00.
`
`SECOND CAUSE OF ACTION
`
`(Breach of Implied Warranty of Fitness for a Particular Purpose Against Cargill —
`January Incident)
`
`87.
`
`Plaintiffs repeat and reallege the allegations contained in paragraphs 1
`
`through 86.
`
`88.
`
`Cargill knew or had reason to know that Plaintiffs intended to use the salt
`
`involved in the January incident to make food products for human consumption.
`
`89.
`
`Cargill knew or had reason to know that Plaintiffs relied on Cargill’s skill
`
`or judgment to select and/or furnish suitable goods for that purpose.
`
`90.
`
`The salt involved in the January incident was contaminated and therefore
`
`not fit for Plaintiffs’ purpose of making food products for human consumption.
`
`91.
`
`Cargill’s supply of the salt involved in the January incident was a breach
`
`of the implied warranty of fitness for a particular purpose set forth in NY. U.C.C. § 2-315.
`
`92.
`
`Cargill did not exclude or modify the implied warranty of fitness for a
`
`particular purpose.
`
`13 of 22
`13 of 22
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`FILED: JEFFERSON COUNTY CLERK 04/08/2021 11:45 AM
`FILED:
`JEFFERSON COUNTY CLERK 04m2021 11:45 ‘
`I
`NYSCEF DOC. NO.
`2
`NYSCEF DOC. NO. 2
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`INDEX NO. EF2021-00000810
`INDEX NO- EF2021-00000810
`RECEIVED NYSCEF: 04/08/2021
`RECEIVED NYSCEF: 04/08/2021
`
`93.
`
`Plaintiffs suffered damage to their finished cheese products as a result of
`
`using the defective, adulterated, and contaminated salt supplied by Cargill.
`
`94.
`
`Plaintiffs promptly, seasonably, and reasonably notified Cargill that the
`
`salt involved in the January incident was non-conforming within a reasonable time after
`
`discovery of the breach, or when a reasonable person should have discovered the breach.
`
`95.
`
`Cargill’s breach of warranty caused damage to Plaintiffs in an amount to
`
`be proven at trial, and in no event less than $1,882,503.00.
`
`(Breach of Implied Warranty of Merchantability Against Cargill — August Incident)
`
`THIRD CAUSE OF ACTION
`
`96.
`
`Plaintiffs repeat and reallege the allegations contained in paragraphs 1
`
`through 95.
`
`97.
`
`The salt involved in the August incident supplied by Cargill to Plaintiffs
`
`was contaminated and therefore not of merchantable quality as (a) the salt did not pass without
`
`objection in the trade under the contract description; (b) the salt was not of fair or average quality
`
`within the description; (c) the salt was not fit for ordinary purposes for which the salt is used; (d)
`
`the salt did not run, within the variations permitted by the parties’ agreement, of even kind,
`
`quality and quantity within each unit and among all units involved; and/or (e) the salt did not
`
`conform to the promises or affirmations of fact made by Cargill.
`
`98.
`
`Cargill’s supply of the salt involved in the August incident was a breach of
`
`the implied warranty of merchantability set forth in NY. U.C.C. § 2-314.
`
`99.
`
`Cargill did not exclude or modify the implied warranty of merchantability.
`
`14 of 22
`14 of 22
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`FILED: JEFFERSON COUNTY CLERK 04/08/2021 11:45 AM
`FILED:
`JEFFERSON COUNTY CLERK 04m2021 11:45 ‘
`I
`NYSCEF DOC. NO.
`2
`NYSCEF DOC. NO. 2
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`INDEX NO. EF2021-00000810
`INDEX NO- EF2021—00000810
`RECEIVED NYSCEF: 04/08/2021
`RECEIVED NYSCEF: 04/08/2021
`
`100.
`
`Plaintiffs suffered damage to their finished cheese products as a result of
`
`using the defective, adulterated, and contaminated salt supplied by Cargill.
`
`101.
`
`Plaintiffs promptly, seasonably, and reasonably notified Cargill that salt
`
`involved in the August incident was non-conforming within a reasonable time after discovery of
`
`the breach, or when a reasonable person should have discovered the breach.
`
`102.
`
`Cargill’s breach of warranty caused damage to Plaintiffs in an amount to
`
`be proven at trial, and in no event less than $831,800.00.
`
`FOURTH CAUSE OF ACTION
`
`(Breach of Implied Warranty of Fitness for a Particular Purpose Against Cargill —
`August Incident)
`
`103.
`
`Plaintiffs repeat and reallege the allegations contained in paragraphs 1
`
`through 102.
`
`104.
`
`Cargill knew or had reason to know that Plaintiffs intended to use the salt
`
`involved in the August incident to make food products for human consumption.
`
`105.
`
`Cargill knew or had reason to know that Plaintiffs relied on Cargill’s skill
`
`or judgment to select and/or furnish suitable goods for that purpose.
`
`106.
`
`The salt involved in the August incident was contaminated and therefore
`
`not fit for Plaintiffs’ purpose of making food products for human consumption.
`
`107.
`
`Cargill’s supply of the salt involved in the August incident was a breach of
`
`the implied warranty of fitness for a particular purpose set forth in NY. U.C.C. § 2-315.
`
`15 of 22
`15 of 22
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`FILED: JEFFERSON COUNTY CLERK 04/08/2021 11:45 AM
`FILED:
`JEFFERSON COUNTY CLERK 04m2021 11:45 ‘
`I
`NYSCEF DOC. NO.
`2
`NYSCEF DOC. NO. 2
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`INDEX NO. EF2021-00000810
`INDEX NO- EF2021—00000810
`RECEIVED NYSCEF: 04/08/2021
`RECEIVED NYSCEF: 04/08/2021
`
`108.
`
`Cargill did not exclude or modify the implied warranty of fitness for a
`
`particular purpose.
`
`109.
`
`Plaintiffs suffered damage to their finished cheese products as a result of
`
`using the defective, adulterated, and contaminated salt supplied by Cargill.
`
`110.
`
`Plaintiffs promptly, seasonably, and reasonably notified Cargill that the
`
`salt involved in the August incident was non-conforming within a reasonable time after
`
`discovery of the breach, or when a reasonable person should have discovered the breach.
`
`111.
`
`Cargill’s breach of warranty caused damage to Plaintiffs in an amount to
`
`be proven at trial, and in no event less than $831,800.00.
`
`FIFTH CAUSE OF ACTION
`
`(Strict Products Liability Against Cargill — January Incident)
`
`112.
`
`Plaintiffs repeat and reallege the allegations contained in paragraphs 1
`
`through 1 1 1.
`
`1 13.
`
`Cargill manufactured the salt involved in the January incident.
`
`114.
`
`Cargill introduced the salt involved in the January incident into the
`
`channels of commerce in New York.
`
`115.
`
`The salt involved in the January incident was defective because it was
`
`adulterated and/or contaminated with rocks.
`
`116. Upon information and belief, the salt involved in the January incident was
`
`delivered to Plaintiffs’ Adams facility salt silo without any change in its defective condition.
`
`16 of 22
`16 of 22
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`FILED: JEFFERSON COUNTY CLERK 04/08/2021 11:45 AM
`FILED:
`JEFFERSON COUNTY CLERK 04m2021 11:45 ‘
`I
`NYSCEF DOC. NO.
`2
`NYSCEF DOC. NO. 2
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`INDEX NO. EF2021-00000810
`INDEX NO- EF2021—00000810
`RECEIVED NYSCEF: 04/08/2021
`RECEIVED NYSCEF: 04/08/2021
`
`117.
`
`Plaintiffs used the salt involved in the January incident in the manner
`
`expected and intended by using it to produce cheese products.
`
`118.
`
`Plaintiffs suffered damage to their finished cheese products as a result of
`
`using the defective, adulterated, and contaminated salt supplied by Cargill.
`
`119.
`
`Cargill is strictly liable in tort for the supply of defective products to
`
`Plaintiffs.
`
`120.
`
`Cargill’s supply of defective products to Plaintiffs in the January incident
`
`caused damage to Plaintiffs in an amount to be proven at trial, and in no event less than
`
`$1,882,503.00.
`
`through 120.
`
`SIXTH CAUSE OF ACTION
`
`(Strict Products Liability Against Cargill — August Incident)
`
`121.
`
`Plaintiffs repeat and reallege the allegations contained in paragraphs 1
`
`122.
`
`Cargill manufactured the salt involved in the August incident.
`
`123.
`
`Cargill introduced the salt involved in the August incident into the
`
`channels of commerce in New York.
`
`124.
`
`The salt involved in the August incident was defective because it was
`
`adulterated and/or contaminated with rock salt and/or otherwise non-food grade salt.
`
`125. Upon information and belief, the salt involved in the August incident was
`
`delivered to Plaintiffs’ Adams facility salt silo without any change in its defective condition.
`
`17 of 22
`17 of 22
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`
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`FILED: JEFFERSON COUNTY CLERK 04/08/2021 11:45 AM
`FILED:
`JEFFERSON COUNTY CLERK 04m2021 11:45 ‘
`I
`NYSCEF DOC. NO.
`2
`NYSCEF DOC. NO. 2
`
`INDEX NO. EF2021-00000810
`INDEX NO- EF2021—00000810
`RECEIVED NYSCEF: 04/08/2021
`RECEIVED NYSCEF: 04/08/2021
`
`126.
`
`Plaintiffs used the salt involved in the August incident in the manner
`
`expected and intended by using it to produce cheese products.
`
`127.
`
`Plaintiffs suffered damage to their finished cheese products as a result of
`
`using the defective, adulterated, and contaminated salt supplied by Cargill.
`
`128.
`
`Cargill is strictly liable in tort for the supply of defective products to
`
`Plaintiffs.
`
`129.
`
`Cargill’s supply of defective products to Plaintiffs in the August incident
`
`caused damage to Plaintiffs in an amount to be proven at trial, and in no event less than
`
`$831,800.00.
`
`through 129.
`
`SEVENTH CAUSE OF ACTION
`
`(Negligence Against Cargill — January Incident)
`
`130.
`
`Plaintiffs repeat and reallege the allegations contained in paragraphs 1
`
`131. Upon information and belief, the negligent acts or omissions of Cargill
`
`caused the salt involved in the January incident to become contaminated with rocks.
`
`132.
`
`Plaintiffs suffered damage to their finished cheese products as a result of
`
`using the defective, adulterated, and contaminated salt supplied by Cargill.
`
`133.
`
`Cargill’s supply of defective, adulterated, and contaminated salt to
`
`Plaintiffs in the January incident caused damage to Plaintiffs in an amount to be proven at trial,
`
`and in no event less than $1,882,503.00.
`
`18 of 22
`18 of 22
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`
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`FILED: JEFFERSON COUNTY CLERK 04/08/2021 11:45 AM
`FILED:
`JEFFERSON COUNTY CLERK 04m2021 11:45 3
`I
`NYSCEF DOC. NO.
`2
`NYSCEF DOC. NO. 2
`
`INDEX NO. EF2021-00000810
`INDEX NO- EF2021—00000810
`RECEIVED NYSCEF: 04/08/2021
`RECEIVED NYSCEF: 04/08/2021
`
`EIGHTH CAUSE OF ACTION
`
`(Negligence Against Cargill — August Incident)
`
`134.
`
`Plaintiffs repeat and reallege the allegations contained in paragraphs 1
`
`through 133.
`
`135. Upon information and belief, the negligent acts or omissions of Cargill
`
`caused the salt involved in the August incident to become contaminated with rock salt and/or
`
`otherwise non-food grade salt.
`
`136.
`
`Plaintiffs suffered damage to their finished cheese products as a result of
`
`using the defective, adulterated, and contaminated salt supplied by Cargill.
`
`137.
`
`Cargill’s supply of defective, adulterated, and contaminated salt to
`
`Plaintiffs in the August incident caused damage to Plaintiffs in an amount to be proven at trial,
`
`and in no event less than $831,800.00.
`
`NINTH CAUSE OF ACTION
`
`(Negligence Against G&L — January Incident)
`
`138.
`
`Plaintiffs repeat and reallege the allegations contained in paragraphs 1
`
`through 137.
`
`139. Upon information and belief, the negligent acts or omissions of G&L
`
`caused the salt involved in the January incident to become contaminated with rocks.
`
`140.
`
`Plaintiffs suffered damage to their finished cheese products as a result of
`
`using salt rendered defective, adulterated, and contaminated by G&L.
`
`19 of 22
`19 of 22
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`
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`FILED: JEFFERSON COUNTY CLERK 04/08/2021 11:45 AM
`FILED:
`JEFFERSON COUNTY CLERK 04m2021 11:45 ‘
`I
`NYSCEF DOC. NO.
`2
`NYSCEF DOC. NO. 2
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`INDEX NO. EF2021-00000810
`INDEX NO- EF2021-00000810
`RECEIVED NYSCEF: 04/08/2021
`RECEIVED NYSCEF: 04/08/2021
`
`141. G&L’s adulteration and/or contamination of the salt involved in the
`
`January incident caused damage to Plaintiffs in an amount to be proven at trial, and in no event
`
`less than $1,882,503.00.
`
`TENTH CAUSE OF ACTION
`
`(Negligence Against Kuhnle — January Incident)
`
`142.
`
`Plaintiffs repeat and reallege the allegations contained in paragraphs 1
`
`through 141.
`
`143. Upon information and belief, the negligent acts or omissions of Kuhnle
`
`caused the salt involved in the January incident to become contaminated with rocks.
`
`144.
`
`Plaintiffs suffered damage to their finished cheese products as a result of
`
`using salt rendered defective, adulterated, and contaminated by Kuhnle.
`
`145. Kuhnle’s adulteration and/or contamination of the salt involved in the
`
`January incident caused damage to Plaintiffs in an amount to be proven at trial, and in no event
`
`less than $1,882,503.00.
`
`ELEVENTH CAUSE OF ACTION
`
`(Negligence Against G&L — August Incident)
`
`146.
`
`Plaintiffs repeat and reallege the allegations contained in paragraphs 1
`
`through 145.
`
`147. Upon information and belief, the negligent acts or omissions of G&L
`
`caused the salt involved in the August incident to become contaminated with rock salt and/or
`
`non-food grade salt.
`
`20 of 22
`20 of 22
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`
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`FILED: JEFFERSON COUNTY CLERK 04/08/2021 11:45 AM
`FILED:
`JEFFERSON COUNTY CLERK 04m2021 11:45 ‘
`I
`NYSCEF DOC.