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Levine v. Philip Morris9/22/2004
This opinion is uncorrected and will not be published in the printed Official Reports.
Defendant moves, pursuant to CPLR 3212, for summary judgment dismissing the complaint.
Background
Deena Soloway commenced this action on or about February 13, 1998. Soloway was born in 1969, and allegedly began smoking cigarettes in 1982, when she was 13 years old. She allegedly smoked Marlboro Lights, a brand of cigarettes manufactured and sold by defendant Philip Morris Incorporated. Soloway continued to smoke until some time before May 14, 1996, when she was diagnosed with lung cancer. The cancer spread to Soloway's brain and kidneys, and she died on February 26, 1998, when she was 28 years old. Her mother, Susan Levine, was thereafter substituted as plaintiff, in her capacity as administratrix of Soloway's estate.
The complaint asserts four causes of action. The first cause of action, for negligence, alleges that defendant failed to exercise reasonable care in the design, manufacture, marketing, and distribution of Marlboro Lights, because defendant: designed and manufactured Marlboro Lights so that they were carcinogenic, addictive, and unreasonably dangerous; targeted minors, like Soloway, with its marketing and advertising for Marlboro Lights, despite the fact that the laws of New York State prohibit the sale of tobacco products to minors; and failed to take reasonable steps, in its design, manufacture, marketing, and distribution of Marlboro Lights cigarettes, to minimize the risk that they would be used by minors.
The second cause of action, for strict product liability, alleges that Marlboro Lights cigarettes were "defective and not reasonably safe for the uses for which they were intended, [although] it was feasible to design those products in a safer manner" (Complaint, II:6).
The third cause of action, for breach of the implied warranty of merchantability, alleges that defendant impliedly warranted to consumers that its Marlboro Lights cigarettes "were merchantable and fit for the ordinary purposes for which they were used," but that that warranty was "false and untrue, in that the tobacco products ... were unsafe for human consumption because they contained addictive and carcinogenic properties of an unreasonably dangerous nature" (id., III:8-9).
The fourth cause of action alleges that defendant violated General Business Law ยง 349, because, as a result of its youth-targeted marketing and distribution practices, defendant "induced and facilitated the continued unlawful use of its tobacco products by children [like Soloway], and thereby has engaged and continues to engage in deceptive acts and practices" (id., IV:10).
Negligence, Strict Liability, and Breach of Warranty Claims
Plaintiff's negligence, strict product liability, and breach of implied warranty claims are barred by California's one-year statute of limitations for those claims, which is made applicable by CPLR 202, New York's "borrowing statute." CPLR 202 requires the dismissal of a cause of action which is brought by a non-New York resident, and based upon a cause of action which accrued in a jurisdiction other than New York, if the action is untimely under the statute of limitations of either New York or the other jurisdiction (see Dugan v Schering Corp., 86 NY2d 857, 859 ).
The complaint's first three claims accrued in California, at a time when Soloway was a resident of that state. In tort cases, and for purposes of the borrowing statute, New York has "consistently employed the traditional definition of accrual -- a cause of action accrues at the time and in the place of the injury" (Global Fin. Corp. v Triarc C
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