A recent decision by the Superior Court of New Jersey Appellate Division has upheld the dismissal of a lawsuit in which a customer claimed to have suffered serious injuries after consuming a salad allegedly contaminated with E. coli from a local deli. The case highlights the importance of filing personal injury claims within the required legal timeframe.
According to court documents, Anthony Cappello filed his complaint on November 7, 2022, in the Superior Court of New Jersey against Cicchetti, LLC, doing business as Il Panino Italian Deli and Catering Restaurant and My Way Deli. Cappello alleged that on November 9, 2018, he purchased and consumed a Mediterranean salad with romaine lettuce from Cicchetti and subsequently became ill. He stated that he required hospitalization, tested positive for E. coli, underwent surgery following his illness, and later had additional surgeries in June and September 2020. Cappello claimed to suffer permanent loss of his colon and significant changes to his lifestyle and quality of life.
Cappello’s complaint asserted that Cicchetti was liable for breaching express and implied warranties regarding the safety and quality of its salads. He cited representations made by Cicchetti that its salads were fit for human consumption and made with high-quality ingredients. According to Cappello, these statements were untrue, leading him to rely on them when purchasing the product. He argued that Cicchetti breached both express warranties—statements made directly about product quality—and implied warranties such as merchantability or fitness for a particular use.
In December 2022, instead of answering the complaint, Cicchetti moved to dismiss under Rule 4:6-2(e), arguing that Cappello’s claim was untimely under New Jersey Statute N.J.S.A. 2A:14-2(a), which sets a two-year limit for personal injury actions. After hearing arguments in February 2023, the trial judge initially denied Cicchetti’s motion to dismiss based on statute of limitations grounds. The judge noted that while the complaint was filed outside two years but within four years of the alleged injury, it stated an express warranty claim—which generally carries a four-year limitation period under commercial law statutes—and thus could not be dismissed at this early stage.
However, after further proceedings including motions for summary judgment joined by third-party defendants Restaurant Depot and D’Arrigo Bros., another judge reconsidered whether Cappello’s claims were subject to the two-year statute for personal injuries or fell under contract law’s four-year period for breach of warranty claims. In an eleven-page written decision issued December 16, 2024, the court concluded that despite how Cappello framed his allegations—as breaches of warranty—the underlying issue was one of personal injury resulting from alleged food contamination.
The court cited longstanding precedent from Heavner v. Uniroyal (1973), which held that consumer actions seeking damages for consequential personal injury due to defective products are governed by general statutes of limitation rather than those specific to contracts or sales under commercial codes like N.J.S.A. 12A:2-725. The opinion stated: “When the gravamen is a defect in the article and consequential personal injury… they will be taken for what they actually are.” Applying this reasoning, the judge ruled that Cappello’s action should have been brought within two years as provided by N.J.S.A. 2A:14-2(a). Because he filed nearly four years after his alleged injury in November 2018, summary judgment was granted in favor of Cicchetti.
On appeal, Cappello argued that his breach-of-warranty claim should be governed by commercial code provisions allowing four years rather than two; he also contended that earlier denial of dismissal created binding law-of-the-case preventing summary judgment on statute-of-limitations grounds. The appellate panel rejected both arguments de novo—meaning without deference to prior interpretations—explaining that courts must look at substance over form when determining applicable limitation periods for lawsuits alleging harm caused by defective products.
The panel further found no abuse of discretion in allowing reconsideration at summary judgment stage since interlocutory rulings (such as denial of an initial motion to dismiss) do not bind subsequent decisions before final judgment is entered.
Attorneys involved included Amanda E. Quinlan (admitted pro hac vice) and Robert A. Jones representing Anthony Cappello; Robert T. Gunning (Morrison Mahoney LLP) representing Cicchetti; Colin Hackett (Lewis Brisbois Bisgaard & Smith LLP) representing Restaurant Depot; Tracy L. Burnley (Marshall Dennehey PC) representing D’Arrigo Bros.; with judges Mayer, Paganelli and Vanek presiding over appellate review under case ID A-1341-24.
Source: A134124_Cappello_v_Cicchetti_LLC_Opinion_New_Jersey_Superior_Court_of_Appeals.pdf
