TORMEY v. AMERICAN TOBACCO COMPANY RJR (2008)

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

Thomas M. TORMEY, Jr., as Administrator of the Estate of Judith I. Tormey, Deceased, Thomas M. Tormey, Jr., Individually and as Executor of the Estate of Judith I. Tormey, Deceased, Plaintiff-Appellant, v. The AMERICAN TOBACCO COMPANY, Lorillard Inc., Lorillard Tobacco Company, Philip Morris Incorporated, Philip Morris Companies, Inc., RJR Nabisco Inc., R.J. Reynolds Tobacco Company, Liggett Group, Inc., now known as Brooke Group, Ltd., Liggett & Myers Tobacco Company, Brown & Williamson Industries, Inc., Brown & Williamson Tobacco Corporation, Defendants-Respondents, et al., Defendants.

Decided: February 01, 2008

PRESENT: SMITH, J.P., LUNN, PERADOTTO, GREEN, AND PINE, JJ.

Bottar & Leone, PLLC, Syracuse (Michael A. Bottar of Counsel), for Plaintiff-Appellant. Greenberg Traurig, LLP, New York City (Alan E. Mansfield of Counsel), Hunton & Williams LLP, New York City, Bond Schoeneck & King PLLC, Syracuse, Scolaro, Shulman, Cohen, Fetter & Burstein, PC, Syracuse, Womble Carlyle Sandridge & Rice, PLLC, Winston-Salem, North Carolina, Costello Cooney Fearon PLLC, Syracuse, Shook Hardy & Bacon, LLP, Miami, Florida, and Kasowitz, Benson, Torres & Friedman LLP, New York City, for Defendants-Respondents.

Supreme Court properly granted the respective motion and cross motion of defendants-respondents (defendants) for partial summary judgment dismissing the second cause of action against them. Plaintiff alleged therein that defendants were negligent in failing to warn nonsmokers concerning the health risks of environmental tobacco smoke (ETS) after the year 1969, inasmuch as plaintiff's decedent, although not a smoker herself, was exposed to ETS from her coworkers. Pursuant to the Federal Cigarette Labeling and Advertising Act (15 USC § 1331 et seq.) (hereafter, Act), however, “ [n]o requirement or prohibition based on smoking and health shall be imposed under State law with respect to the advertising or promotion of any cigarettes the packages of which are labeled in conformity with the provisions of this chapter” (15 USC § 1334[b] ). The United States Supreme Court has rejected a narrow construction of the phrase “based on smoking and health” (id.; see Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 548, 121 S.Ct. 2404, 150 L.Ed.2d 532), and we conclude that the second cause of action, for failure to warn, is necessarily “based on smoking and health” and therefore is preempted by the Act (id.; see Cipollone v. Liggett Group, 505 U.S. 504, 524, 112 S.Ct. 2608, 120 L.Ed.2d 407). In any event, requiring defendants to provide warnings to nonsmokers would necessarily involve “advertising or promotion” of cigarettes, the regulation of which is also prohibited by the Act (15 USC § 1334[b]; see also Vango Media, Inc. v. City of New York, 34 F.3d 68, 73-75).

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

MEMORANDUM:

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