AN INFANT BY PARENT AND NATURAL GUARDIAN ROBERT AVALLONE v. L.N.K. International, Inc., Defendant. (2026)

Upon the following papers read on defendant's motion to dismiss plaintiff's complaint pursuant to CPLR 3211: NYSCEF documents 1 thru 44; it is hereby

ORDERED defendant's motion to dismiss is granted, with prejudice.

Plaintiff, Robert Avallone, as parent and natural of H.H., initially commenced this action Oklahoma State Court against L.N.K. International Inc. and Walgreen Co. in December of 2023. The action was removed to Federal Court and the action against Walgreen Co. was dismissed with prejudice. Plaintiff's claims were dismissed against L.N.K. International, Inc., without prejudice on May 5, 2025, but were not transferred to the Oklahoma State Court the Court found that transfer was not in the interest of justice as plaintiff's claims were "not likely to have merit." On May 14, 2026, plaintiff commenced this action in New York seeking to recover damages alleged in strict liability and negligence for the manufacture of a child-proof pill bottle lid which it is alleged failed to prevent the minor from accessing a dangerous medication, acetaminophen. Plaintiff is a resident of Ponca City, Oklahoma. Rather than answer, defendant moves to dismiss. In support of the motion, defendant submits, among other things, an affirmation of counsel, a memorandum of law, and papers related to the prior federal action in the United States District Court for the Western District of Oklahoma, under CIV-24-60-J.

Defendant maintains that the New York action must be dismissed because the dispositive issues were already decided in the Oklahoma action; that the claims are preempted; and that the complaint neither states a cause of action in negligence nor strict liability. Initially the Federal Court dismissed plaintiff's first-amended complaint on lack of personal jurisdictional grounds, but the Federal Court permitted limited jurisdictional discovery, and a second-amended complaint to be filed by February 14, 2025. Plaintiff's second-amended complaint was dismissed on December 2, 2025. United States District Judge Bernard M. Jones dismissed for lack of personal jurisdiction. The Federal Court also specifically found that Oklahoma law applied; that plaintiff's state law claims were expressly preempted by the Federal Poison Prevention Packaging Act ("PPPA"); and that plaintiff's second amended complaint failed to state a cause of action because they did not plausibly allege any specific defect in the acetaminophen bottle (NYSCEF document # 011, Avallone v Auro Health LLC, et al., Case No. 5:24-cv-00060-J (W.D. Okla.).

Upon reconsideration the Federal Court determined that was error to reach the merits of plaintiff's claims once the Court determined that it did not have jurisdiction over L.N.K. International Inc. Plaintiff also requested, upon reconsideration, that the matter be transferred to the United States District Court for the Eastern District of New York pursuant to 28 U.S.C. § 1631. The transfer application was denied as the Court "took a peek" at the merits of plaintiff's case to determine whether transfer of the case to New York was appropriate. The Federal Court denied transfer because the state law claims were preempted by the PPPA, and the second amended complaint failed to state a claim upon which relief could be granted (NYSCEF document # 012, Avallone v Auro Health LLC, et al., Case No. 5:24-cv-00060-J (W.D. Okla.), reconsideration, dated May 5, 2026). The Court's Judgment was amended to reflect that the dismissal against L.N.K. International Inc. was "without prejudice."

Jurisdiction here is established based upon defendant's corporate offices in Uniondale, New York and Hauppauge, New York. No party has moved to transfer venue to Oklahoma where plaintiff's a citizen, resident, and domiciliary; where the incident occurred; the sale occurred at former defendant Walgreen Co.'s store that retailed and distributed the subject bottle in Oklahoma; and where prior litigation began.

CPLR 3211 (a) (7) provides, "A party may move for judgment dismissing one or more causes of action asserted against [the party] on the ground that the pleading fails to state a cause of action." "On a motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction. We accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every favorable inference, and determine only whether the facts as alleged fit into any cognizable legal theory" (Leon v Martinez, 84 NY2d 83, 87-88, 614 NYS2d 972, 974 [1994]). The Court may consider other evidentiary material that was submitted on the motion. This Court must determine whether the plaintiffs have a cause of action (Guggenheimer v Ginzberg, 43 NY2d 268, 401 NYS2d 182 [1977]).

At the outset, this Court declines to apply collateral estoppel as once the Federal Court determined that it lacked jurisdiction, the decision on the merits, as the Federal Court found in reconsideration, need not have been reached by that Court.

Independent of the Federal District Court, this Court finds that plaintiff's claims are preempted by the PPPA. The essence of plaintiff's complaint is that an eight-year old child was able to open the bottle of acetaminophen and access the pills inside. The PPPA requires that acetaminophen be sold in special packaging designed to be significantly difficult for children under five years of age to open within a reasonable time (15 U.S.C. § 1471 [4]). Plaintiff's attempt to impose a higher standard is expressly preempted by 15 U.S.C. § 1476 (a). Accordingly, plaintiff's first cause of action alleging strict liability is dismissed as it fails to state a cause of action.

Plaintiff's complaint alleges a second cause of action for negligence. Plaintiff's complaint fails to plead or identify the specific defect with regard to the bottle. While plaintiff's complaint alleges defective manufacture and defective condition of the bottle, what actually was wrong with the bottle is not alleged.

Plaintiff's complaint fails to plead or allege what duty defendant failed to comply with. While the complaint alleges duties to exercise reasonable care in the design and implementation of defendant's manufacturing process with regard to molding, assembly, inspection, testing, quality control, packaging, labeling, marketing, distribution, and sale, these requirements are controlled by the Federal Statute and are not appropriately brought in a New York State Court.

Moreover, as to both strict liability and negligence, plaintiff's complaint, in essence plaintiff's third-amended complaint, fails to allege the specific defect in the bottle's closure system.

Accordingly, plaintiff's first and second causes of action are dismissed.

E N T E R :

Paul M. Hensley

Hon. Paul M. Hensley

Justice of the Supreme Court

Date: October 6, 2026

Riverhead, New York

Paul M. Hensley, J.