FLAIR BEVERAGE CORP v. COLA INC

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Supreme Court, Appellate Division, First Department, New York.

FLAIR BEVERAGE CORP., Plaintiff-Appellant, v. C & C COLA, INC., Defendant-Respondent.

Decided: March 24, 1998

Before SULLIVAN, J.P., and MILONAS, ROSENBERGER and TOM, JJ. Charles Palella, for Plaintiff-Appellant. Andrew E. Curto, for Defendant-Respondent.

Judgment, Supreme Court, New York County (Herman Cahn, J.), entered on or about January 17, 1997, which, after a nonjury trial, dismissed plaintiff's complaint, unanimously affirmed, without costs.

We agree with the trial court that, while the use of reverse vending machines is widely accepted by beverage dealers and distributors, the Returnable Container Act (Environmental Conservation Law 27-1001, et seq.) (“the Act”) is not violated by a distributor's rejection of returned containers dismembered in reverse vending machines whose brand and refund value cannot as a consequence be verified by a visual inspection (6 NYCRR 367.5[b];  367.7 [a] ).   The refusal of a distributor such as defendant to accept such containers for redemption, except from a trusted intermediary employing an examination method acceptable to the distributor, does not frustrate the purpose or intent of the Act.

Plaintiff's claim that defendant was unjustly enriched is unsupported in the record and was properly dismissed.

We have considered plaintiff's remaining contentions and find them to be without merit.

MEMORANDUM DECISION.