ROSEN v. BROWN WILLIAMSON TOBACCO CORPORATION (2004)

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

Selma ROSEN, et al., respondents, v. BROWN & WILLIAMSON TOBACCO CORPORATION, appellant.

Decided: October 12, 2004

DAVID S. RITTER, J.P., HOWARD MILLER, ROBERT A. SPOLZINO, and PETER B. SKELOS, JJ.

Chadbourne & Parke, LLP, New York, N.Y. (David L. Wallace, Karen A. Iafe, and Robert E. Conrad of counsel), for appellant. Mark R. Bower, P.C., New York, N.Y., for respondents.

In an action, inter alia, to recover damages for negligence and based on products liability, etc., the defendant appeals from an order of the Supreme Court, Nassau County (Brandveen, J.), dated March 18, 2003, which denied its motion for summary judgment dismissing the complaint.

ORDERED that the order is modified, on the law, by deleting the provision thereof denying that branch of the motion which was to dismiss the fourth cause of action and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed, without costs or disbursements.

Since a civil conspiracy cause of action requires a showing of intentional conduct, negligence cannot serve as the underlying tort (see Sackman v. Liggett Group, Inc., 965 F.Supp. 391, 395 [E.D.N.Y.] ). Accordingly, summary judgment should have been granted dismissing that cause of action.

The defendant's remaining contentions are without merit.

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