The following e-filed documents, listed by NYSCEF document number (Motion 001) 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 28, 29 were read on this motion to/for STAY. DECISION + ORDER ON MOTION Plaintiff, Elizabeth Galkowski-Coira (plaintiff), commenced this action pursuant to the General Business Law, for negligent misrepresentation, fraud, breach of warranty, breach of warranty under state and federal Magnuson Moss Warranty Act, 15 U.S.C. §2301, et seq. (MMWA), and for unjust enrichment against defendant, The Price Chopper, Inc. (defendant), stemming from alleged deceptive marketing practices. Defendant now moves pursuant to CPLR 2201 to stay this action pending the resolution of a motion to consolidate this action with another action pending in Suffolk County Supreme Court entitled St. John v. The Price Chopper, Inc., Index No. 605458/2021, or in the alternative, pursuant to CPLR 3211(a) to dismiss the amended complaint.1 The motion is opposed. For the following reason, defendant’s motion is granted. FACTUAL ALLEGATIONS Plaintiff commenced this action seeking damages based upon allegedly misleading labelling concerning the source of vanilla flavoring contained in Greek yogurt sold by defendant. Plaintiff alleges that defendant manufactures and distributes a vanilla-flavored Greek-style yogurt under its private label PICS brand (the product) (compl at 1). The front label of the product appears as follows: Plaintiff represents a putative class of New York consumers who purchased the product. Plaintiff alleges that defendant misleadingly labeled the product “vanilla,” in that the product “may contain a de minimis or negligible amount of natural vanilla, and that the Product’s vanilla taste is mostly from non-vanilla, artificial flavor” (NYSCEF doc. no. 12, compl at 32 [emphasis in original]). Specifically, plaintiff alleges that the product contains artificial vanillin, derived from guaiacol (id. at 39), and that the product’s front label falsely implies that the flavoring is created exclusively with real vanilla (id.
18-19). Plaintiff claims that the product “is sold for a price premium,” and that plaintiff “would not have bought the product or would have paid less for it” had she known, as plaintiff alleges, that the product was not made with real vanilla (id.
