Miele v. American Tobacco Co.12/29/2003
This opinion is uncorrected and subject to revision before publication in the Official Reports.
LEO F. McGINITY and DANIEL F. LUCIANO, JJ.
DECISION & ORDER
(Index No. 019125/97)
In an action, inter alia, to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of six orders of the Supreme Court, Nassau County (Martin, J.), all dated June 29, 2001, as granted those branches of the respective motions of the defendants Philip Morris, Inc., R.J. Reynolds Tobacco Company, Lorillard Tobacco Company, Brown & Williamson Tobacco Corporation, individually and as successor by merger to The American Tobacco Company, the Council for Tobacco Research-USA, Inc., and the Tobacco Institute, Inc., which were for summary judgment dismissing the causes of action to recover damages for pre-1969 failure to warn, post-1969 fraudulent concealment, and concerted action to the extent that cause of action is predicated based on allegations of negligence, and so much of the same orders as granted those branches of the motions of the defendants Philip Morris, Inc., R.J. Reynolds Tobacco Company, Lorillard Tobacco Company, and Brown & Williamson Tobacco Corporation, individually and as successor to The American Tobacco Company, which were to dismiss the cause of action to recover damages for post-1969 strict product liability design defects.
ORDERED that the orders are reversed insofar as appealed from, on the law, those branches of all of the respondents' motions which were for summary judgment dismissing the causes of action to recover damages for pre-1969 failure to warn, post-1969 fraudulent concealment, and concerted action to the extent that cause of action is predicated on allegations of negligence are denied, those causes of action are reinstated insofar as asserted against all of the respondents, and those branches of the motions of the respondents Philip Morris, Inc., R.J. Reynolds Tobacco Company, Lorillard Tobacco Company, and Brown & Williamson Tobacco Corporation, individually and as successor by merger to The American Tobacco Company, which were to dismiss the cause of action to recover damages for post-1969 strict product liability design defects are denied, and that cause of action is reinstated insofar as asserted against those respondents.
The plaintiff alleged that his deceased wife (hereinafter the decedent) contracted lung cancer from smoking cigarettes that were manufactured, promoted, and/or sold by the respondents for more than 20 years. The respondents are five cigarette manufacturers, Philip Morris, Inc., R.J. Reynolds Tobacco Company, Brown & Williamson Tobacco Corporation, individually and as successor by merger to The American Tobacco Company, and Lorillard Tobacco Co., and two tobacco-related entities, the Tobacco Institute, Inc., and the Council for Tobacco Research-USA, Inc.
The Supreme Court dismissed the plaintiff's causes of action based on the failure to warn of the dangers of cigarette smoking before the effective date of the Federal Cigarette Labeling and Advertising Act, as amended by the Public Health Cigarette Smoking Act of 1969 (15 USC ยง 1331, et seq.) (hereinafter the Act), finding that the respondents established, as a matter of law, that the risks of smoking were a matter of common knowledge at the time the decedent began smoking. We find, however, that the plaintiff, in opposition to the motion, raised issues of fact as to whether consumers were fully aware of the health hazards posed by smoking cigarettes when the decedent began smoking, particularly considering that the respondents disseminated information, at the relevant time, disputing
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