Levine v Philip Morris Inc.

[*1] Levine v Philip Morris Inc. 2004 NY Slip Op 51177(U) Decided on September 22, 2004 Supreme Court, New York County Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 22, 2004
Supreme Court, New York County

SUSAN LEVINE as the Administratrix of the Estate of DEENA SOLOWAY, Plaintiff,

against

PHILIP MORRIS INCORPORATED, Defendant.



102765/1998

Charles Edward Ramos, J.

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 § 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 [*2]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 [1995]).

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 Corp., 93 NY2d 525, 529 [1999]).

Pursuant to CPLR 214-c (2), the limitations period: within which an action to recover damages for personal injury ... caused by the latent effects of exposure to any substance or combination of substances ... upon or within the body ... must be commenced shall be computed from the date of discovery of the injury by the plaintiff or from the date when through the exercise of reasonable diligence such injury should have been discovered by the plaintiff, whichever is earlier.

As used in the statute, the term "injury" means "an actual illness, physical condition or other similarly discoverable objective manifestation of the damage caused by previous exposure to an injurious substance" (Sweeney v General Printing, Inc., 210 AD2d 865, 865-866 [3d Dept 1994]). "Discovery of the injury" means "discovery of the physical condition [upon which a plaintiff's claim is based] and not ... the more complex concept of discovery of both the condition and the nonorganic etiology of that condition" (Matter of New York County DES Litig., 89 NY2d 506, 514 [1997]).

Thus, accrual occurs upon manifestation of the symptoms of the condition which is the basis of the claim, and not upon formal conclusive diagnosis of that condition (see Neri v R.J. Reynolds Tobacco Co., 185 F Supp 2d 176, 179-181 [ND NY 2001]; Matter of New York County DES Litig., 89 NY2d at 515 [rejecting an interpretation of CPLR 214-c (2) which would make accrual dependent upon "such fortuitous circumstances as the medical sophistication of the individual plaintiff and the diagnostic acuity of his or her chosen physician"]; Pearl v Eli Lilly & Co., 262 AD2d 106, 106 [1st Dept 1999], appeal denied, 94 NY2d 752 [1999]; Harley v 135 East 83rd Owners Corp., 238 AD2d 136, 136-138 [1st Dept 1997]).

Under the foregoing principles, and plaintiff's assertions to the contrary notwithstanding, plaintiff's first three causes of action accrued in California. Soloway moved to California in late 1992 or 1993, and worked and resided there until approximately mid-1996. She visited doctors in California on several occasions, beginning in the spring of 1995, with complaints of coughing, chest pain, and other respiratory symptoms. A CT scan was taken of her chest on March 21, 1996, in Los Angeles. According to the radiologist's report, the CT scan revealed "[a]n irregular mass measuring approximately 3-3.9 cm. ... in the right lower lobe" of Soloway's lung, which was "suspicious for malignancy" (Quigley Reply Affirm., Ex. R, Medical Record [MR] 254402-00001).

A "fine needle aspiration" biopsy was taken of the mass, on March 27 or 28, 1996, also in Los Angeles, but the results were "inconclusive" as to whether the mass was malignant (id., Ex. U, MR 254405-00020). On April 16, 1996, another doctor in Los Angeles noted that Soloway had "a persistent [right lower lobe] mass" which had "been present for at least 7 months" (id., Ex. V, MR 254405-00034). According to the doctor's notes, he "told her [that he] did not think [the mass] was malignant but [that] there was a 10-20% chance," and that, "no matter what it is, it ... should be removed" (id.). Soloway had surgery to remove the mass in New York, on May 14, 1996, and, based upon post-operative tests, was diagnosed as having cancer (Fiano Affirm., ¶¶ 77-78 and Ex. 74, MR 254341-00009).

Although Soloway was not definitively diagnosed as having lung cancer until after she had surgery in New York, California is the place where she first experienced the various respiratory symptoms of that condition, and where doctors discovered the mass in her lung, [*3]which the radiologist found to be "suspicious for malignancy," which another doctor reportedly advised her had a "10-20% chance" of being malignant, and which did eventually prove to be malignant. Thus, the complaint's first three causes of action accrued in California.

Plaintiff contends that the claims did not accrue until she was conclusively diagnosed with lung cancer, in New York. According to plaintiff, Soloway had ambulatory pneumonia for a period of approximately one year prior to the diagnosis of lung cancer, and her symptoms of coughing and chest pain were not clearly attributable to lung cancer rather than to pneumonia. Thus, according to plaintiff, Soloway's respiratory symptoms were not alone sufficient to make her aware of "the primary condition" which is the basis of the complaint's first three causes of action (Matter of New York County DES Litig., 89 NY2d at 509, 514 n 4).

However, the medical records do not indicate that Soloway had pneumonia continually during the entire year or so prior to the diagnosis of lung cancer, but only that she had pneumonia for some discrete period of time (see Fiano Affirm., Exs. 71, 72). Because Soloway's respiratory symptoms evidently persisted after she no longer had pneumonia, it was presumably clear that the symptoms did not relate exclusively to pneumonia. Nor, in any event, does plaintiff assert that the mass in Soloway's lung could have been reasonably misapprehended as a symptom of pneumonia.

Defendant has also adequately established that Soloway was a resident of California at the time when the complaint's first three claims accrued. "[T]he determination of whether a plaintiff is a New York resident, for purposes of CPLR 202, turns on whether he has a significant connection with some locality in the State as the result of living there for some length of time during the course of a year" (Antone v General Motors Corp., 64 NY2d 20, 30 [1984]).

Plaintiff concedes that Soloway resided in California from late 1992 or 1993 until mid-1996 (see Fiano Affirm., ¶ 75; Pl. Resp. to Interrogs., Quigley Affirm., Ex. B, ¶ 3). During that time, she was employed in that state, obtained a California state driver's license, and paid California state income taxes for the years 1993 through 1996 (see Quigley Affirm., ¶¶ 10-12 and Exs. B ¶ 21; E). During that same period, on various occasions, Soloway allegedly visited and stayed at her mother's or sister's residence in New York, and also visited a doctor in New York. However, those occasional visits do not establish the requisite "significant connection with some locality in [New York State] as the result of living there for some length of time during the course of a year."

Accordingly, at the time when the symptoms of Soloway's lung cancer manifested themselves, and the complaint's first three causes of action accrued, she was a resident of California rather than New York. That finding is not altered by the facts that Soloway subsequently returned to New York on a temporary basis, in May 1996, for the surgery to remove the mass from her lung, and on a permanent basis, in September or October 1996 (see Dugan v Schering Corp., 86 NY2d at 859 [determining residency, for purposes of CPLR 202, "at the time the cause of action accrued"]).

Because Soloway's claims accrued in California, at a time when she was a resident of California, the claims are barred by CPLR 202 if they are untimely under the limitations period applicable to those claims under California law. Plaintiff does not dispute defendant's contention that, if CPLR 202 is applicable, then the complaint's first three causes of action are subject to a one-year limitations period, and are untimely, under applicable California law.

Section 340 (3) of the California Code of Civil Procedure (CCCP), which was generally applicable to causes of action filed prior to January 2003, established a one-year statute of limitations for actions based upon "injury to or for the death of one caused by the wrongful act or neglect of another."[FN1] Under California law, that one-year limitations period would apply to [*4]plaintiff's claims based upon the theories of negligence, strict product liability, and breach of implied warranty (see e.g. Goldrich v Natural Y Surgical Specialities, Inc., 25 Cal App 4th 772, 778-779, 31 Cal Rptr 2d 162, 166 [Cal Ct App, 2d Dist 1994] [negligence, product liability, and breach of implied warranty claims], Review denied, 1994 Cal Lexis 4590 [Cal 1994]; Rose v Fife, 207 Cal App 3d 760, 770-772, 255 Cal Rptr 440, 446-448 [Cal Ct App, 2d Dist 1989] [product liability and breach of implied warranty claims]).

In determining whether the complaint's first three claims are timely under California law, the court must consider not only the length of the limitations period, but also California's rules governing accrual of the claims (see Saylor v Lindsley, 302 F Supp 1174, 1180 [SD NY 1969]). The California Supreme Court has held that, in latent injury cases, the statute begins to run when a plaintiff suspects, or should reasonably suspect, that his or her injury was caused by wrongdoing (see Jolly v Eli Lilly & Co, 44 Cal 3d 1103, 1110, 751 P2d 923, 927 [Cal 1988]; see also Soliman v Philip Morris Inc., 311 F3d 966, 972 [9th Cir 2002] [applying California law, and holding that statute of limitations began to run when plaintiff "should first have suspected that defendants' tobacco products had injured him, whether or not he knew of defendants' wrongful conduct"], cert denied ___ US ___, 124 S Ct 64 [2003]). However, even if the one-year limitations period applicable to the complaint's first three causes of action under California law were deemed to have begun only when Soloway was conclusively diagnosed with cancer (i.e., on or about May 14, 1996), it would still have expired before this action was commenced (i.e., when the complaint was filed on or about February 13, 1998). Thus, because plaintiff's first three causes of action would be untimely under the limitations period and accrual principles applicable to them under California law, those claims are dismissed.

General Business Law § 349 Claim

Defendant argues that plaintiff's cause of action under GBL § 349 is precluded by California Civil Code (CCC) § 1714.45, a statute which bars certain claims against manufacturers and sellers of tobacco products, based upon their conduct during the 10-year period extending from January 1, 1988 through December 31, 1997.[FN2] According to defendant, New York's choice of law principles mandate that the parties' dispute be governed by California substantive law. However, assuming that there is a conflict between the laws of California and New York with regard to plaintiff's GBL § 349 claim,[FN3] defendant has failed to bear its burden of establishing that the law of California should govern the disposition of that claim (see Allstate Ins. Co. v Conigliaro, 248 AD2d 293, 294 [1st Dept 1998]; Reale by Reale v Herco, Inc., 183 AD2d 163, 167 [2d Dept 1992]). [*5]

When conflicting laws are potentially applicable, New York employs "an interest analysis rule that gives effect to the law of the jurisdiction having the greatest interest in resolving the particular issue involved. An evaluation of the facts or contacts which ... relate to the purpose of the particular law in conflict determines the greater interest" (Elson v Defren, 283 AD2d 109, 115 [1st Dept 2001] [citations and internal quotation marks omitted]). "In weighing the various interests, New York courts distinguish between 'conduct regulating' and 'loss allocating' rules" (id.).

Here, both conduct regulating and loss allocating rules are in issue. GBL § 349 is a conduct regulating rule, because it has "the prophylactic effect of governing conduct to prevent injuries from occurring" (Padula v Lilarn Props. Corp., 84 NY2d 519, 522 [1994]), i.e., by proscribing "deceptive acts and practices ... by merchants, service providers, and manufacturers that will adversely affect consumers and others" (Bergeron v Philip Morris, Inc., 100 F Supp 2d 164, 169-170 [ED NY 2000] [characterizing GBL § 349 as a conduct regulating rule]). By contrast, CCC § 1714.45 is a loss allocating rule, because, with respect to the period of its effectiveness, it seeks to "prohibit, assign, or limit liability after [a] tort [has already] occur[red]" (Padula v Lilarn Props. Corp., 84 NY2d at 522).

However, regardless of whether the choice of law analysis appropriate to conduct regulating or loss allocating rules is applied, such analysis indicates that New York law should govern the disposition of plaintiff's GBL § 349 claim. "If conduct regulating rules conflict, New York courts usually apply the law of the place where the tort occurred because that jurisdiction has the greatest interest in regulating behavior that takes place within its borders" (Elson v Defren, 283 AD2d at 115). Plaintiff's GBL § 349 claim is predicated upon conduct which allegedly occurred within New York State. The complaint alleges that defendant violated GBL § 349, by means of its "youth-targeted marketing, promotional and distribution practices," which "induced and facilitated the ... unlawful use of its tobacco products by children such as [Soloway]," and that Soloway "was, in fact, induced by the aforesaid deceptive acts and practices ... and in approximately 1982 began smoking Marlboro Lights, to which she became addicted and continued to smoke until shortly before she was diagnosed with lung cancer" (Complaint, ¶¶ IV:10-11). Thus, the allegedly deceptive acts and practices purportedly induced Soloway to begin smoking in 1982, while she resided in New York, and New York has the greatest interest in regulating the conduct that allegedly took place within its borders.

"If loss allocating rules conflict, the three so-called Neumeier rules adopted in Neumeier v Kuehner [31 NY2d 121 (1972)] govern the choice of law analysis" (Elson v Defren, 283 AD2d at 115). "Under the first Neumeier rule, where ... the parties to the lawsuit share a common domicile, the loss allocation rule of the common domicile will apply" (id. [citation and internal quotation marks omitted]).

For purposes of choice of law analysis, and with particular regard to the question of which state's law shall govern plaintiff's GBL § 349 claim, the court finds that Soloway and defendant shared the common domicile of New York. Although Philip Morris is a Virginia corporation, it maintains its principal place of business in New York, and is therefore considered a New York domiciliary for choice of law purposes (see Elson v Defren, 283 AD2d at 116; see also Bergeron v Philip Morris, Inc., 100 F Supp 2d at 170). Soloway was a domiciliary of California from approximately 1993 through approximately mid-1996, the period during which she began to experience the symptoms of her lung cancer. However, she was apparently domiciled in New York from approximately mid or late 1996 through the time of her death in February 1998, during which time she commenced this action by filing the complaint.

For choice of law purposes, generally, a party's domicile will be determined as of the time when the tort occurred, and a post-tort change in domicile is irrelevant (see Wheeler v Standard Tool and Mfg. Co., 359 F Supp 298, 301 [SD NY 1973], affd 497 F2d 897 [2d Cir 1974]; Schultz v Boy Scouts of Am., Inc., 65 NY2d 189, 194 [1985]). However, a party's post-tort change in domicile has been recognized, for choice of law purposes, where, as in the present case, the party's domicile was changed to New York, the forum was New York, and the other party's [*6]domicile was New York (see Schultz v Boy Scouts of Am., Inc., 65 NY2d at 194 [citing Miller v Miller, 22 NY2d 12, 22 (1968)]).

Defendant has failed to articulate any adequate reason to ignore Soloway's post-tort change in domicile to New York, or to deny the application of New York law to plaintiff's GBL § 349 claim, under the particular circumstances of this case. Defendant does not contend, for example: that either defendant or Soloway patterned their conduct, or relied upon, the law of California; that Soloway's post-tort change in domicile to New York was motivated by the desire to achieve a more favorable legal climate, or otherwise implicates policies against forum shopping; or that California has any particular interest in barring a remedy for injuries allegedly sustained by Soloway as a result of defendant's purportedly deceptive conduct, which occurred in New York, in and prior to 1982 (see generally Miller v Miller, 22 NY2d at 19-22). It is New York, rather than California, which has the more significant relationship with the issues involved in plaintiff's GBL § 349 claim, and which has the more significant interest in the application of its law to those issues (see id., 22 NY2d at 22).

GBL § 349 prohibits deceptive acts and practices in the conduct of business, trade, and commerce.

A deceptive act or practice is not the mere invention of a scheme or marketing strategy, but the actual misrepresentation or omission to a consumer, by which the consumer is caused actual, although not necessarily pecuniary, harm. Thus, to prevail in a cause of action under GBL [§ 349] ..., the plaintiff must prove that the defendant made misrepresentations or omissions that were likely to mislead a reasonable consumer in the plaintiff's circumstances, that the plaintiff was deceived by those misrepresentations or omissions and that as a result the plaintiff suffered injury.

(Solomon v Bell Atl. Corp., ___ AD2d ___, 777 NYS2d 50, 55 {9 AD3d 49} [1st Dept 2004] [citations and internal quotation marks omitted]). Accordingly, plaintiff must offer evidence that defendant made a misrepresentation or omission which was likely to mislead a reasonable consumer, which actually deceived Soloway, and which caused her injury.

In opposition to defendant's motion, plaintiff asserts that defendant engaged in two types of deceptive acts or practices which are the basis of plaintiff's GBL § 349 claim. First, plaintiff alleges that defendant engaged in deceptive youth-targeted marketing and promotional practices which induced Soloway and other minors to begin and to continue smoking. Plaintiff alleges that those practices were deceptive, in that defendant knew that the sale of tobacco products to minors was illegal, and that minors lacked the capacity and maturity to understand the true risks associated with cigarette smoking.

In support of the foregoing allegations, plaintiff has offered deposition testimony and documentary evidence to the effect that: (1) defendant knew that its "Marlboro Country" advertising and promotion campaign, with its "open West country" scenes and the "Marlboro Man," was particularly appealing to minors; (2) largely because of that appeal, Marlboro dominated the market of youthful smokers, prior to, and at the time when, Soloway began to smoke; (3)during the relevant time period, Marlboro Lights were marketed under the Marlboro Country campaign; (4) Soloway was fascinated by photographs of film actors smoking unidentified brands of cigarettes, and found such photographs to be visually appealing; (5) Soloway had a strong interest in advertising, even when she was a child, and the Marlboro Country advertisements were her favorite advertisements; and (6) Soloway began smoking Marlboro Lights, when she was a minor, because she saw that brand promoted in advertisements that she liked.

As reprehensible as encouraging children to smoke is, it is not in and of itself deceptive. In fact, until the Master Settlement Agreement was executed, advertising to children to smoke, [*7]even though it would be illegal for them to purchase cigarettes, Penal Law §260.20[FN4] and §260.21, was not illegal. MSA Section III. Even taking into consideration plaintiff's youth in determining whether she was misled by the advertisements and acted reasonably in deciding to smoke, the result is the same. (Dunn v Northgate Ford, 2004 NY Slip Op 50030U *3 [Sup Ct, Broome County 2004]).

The mere fact that Soloway may have seen and liked Marlboro cigarette advertisements, and found them to be visually pleasing or appealing, even at a time when she was herself too young to smoke legally, or that those advertisements may have appealed to minors more generally, does not itself render those advertisements deceptive. Nor has plaintiff offered any evidence that Soloway was actually deceived, or that she ever claimed to have been deceived, by any of defendant's advertising or promotions. Finally, in view of the foregoing facts, plaintiff has also failed to offer any evidence that Soloway suffered an injury which was the result of her having been deceived by a misrepresentation or omission made by defendant.[FN5]

Indeed, any determination that Soloway began or continued smoking because of defendant's advertising would be purely speculative, in light of the evidence contained in the record that Soloway may have begun and continued to smoke for various reasons apart from defendant's advertising, e.g., because she found pictures of actors smoking cigarettes to be aesthetically beautiful, without regard to the brand of the cigarettes involved (see D. Moody EBT, at 130-132); because she perceived that virtually everyone around her smoked, including her mother, her father, her step-mother, her older sister, and "all" of her friends (see S. Levine EBT, at 154, 208, 210; H. Soloway EBT, at 52-54, 72; R. Soloway EBT, at 45; F. Levine EBT, at 131, 134); because it made her feel good, or important, or glamorous (see S. Levine EBT, at 206, 207, 210, 218); because she enjoyed it (see S. Levine EBT, at 234; R. Soloway EBT, at 110; F. Levine EBT, at 144); and because it helped her to relax, and relieved stress (see S. Levine EBT, at 116, 117).

For the foregoing reasons, plaintiff has failed to raise an issue of fact as to whether defendant's purportedly youth-targeted advertising contained any misrepresentation or omission which was likely to mislead a reasonable consumer, which did actually deceive Soloway, and which caused injury to Soloway.

As a second basis for the complaint's GBL § 349 claim, plaintiff alleges that defendant's use of the terms "low tar," "light," and/or "lights" in advertisements for Marlboro Lights cigarettes was deceptive. According to plaintiff, those terms implied that Marlboro Lights delivered less tar and/or nicotine to the smoker, and were safer or healthier than other cigarettes, whereas defendant knew, from its own internal research, that Marlboro Lights cigarettes delivered at least as much tar and nicotine as other cigarettes.

Plaintiff's allegation as to the deceptiveness of defendant's use of the terms "low tar," "light," and "lights" is not set forth in the complaint, but is raised for the first time in plaintiff's papers in opposition to defendant's motion. In any event, that allegation fails to provide a viable basis for plaintiff's GBL § 349 claim. Even assuming, arguendo, that defendant's use of the subject terminology was deceptive as a general matter, there is no evidence in the record that Soloway was actually deceived by that terminology (i.e., that she believed that Marlboro Lights [*8]delivered less tar or nicotine, or were safer or healthier, than other cigarettes), or, accordingly, that she suffered an injury which was caused by any such deception. (See Aspinall v Philip Morris Companies, Inc., 2004 Mass. Lexis 501 [Sup. Jud. Court of Mass August 13, 2004]).

CONCLUSION AND ORDER

For the foregoing reasons, it is hereby

ORDERED that defendant's motion for summary judgment is granted, and the complaint is dismissed; and it is further

ORDERED that the Clerk is directed to enter judgment accordingly.

Dated: September 22, 2004

_________________________

J.S.C.

Counsel are hereby directed to obtain an accurate copy of this Court's opinion from the record room and not to rely on decisions obtained from the internet which have been altered in the scanning process. Footnotes

Footnote 1:The statute was amended, effective January 1, 2003, to allow for a two-year limitations period (see CCCP § 335.1). However, the amendment applies retroactively only to claims arising out of the September 11, 2001 terrorist attacks, and, therefore, is not relevant to the claims in this action (see Krupnick v Duke Energy Morro Bay, L.L.C., 115 Cal App 4th 1026, 1028-1030, 9 Cal Rptr 3d 767, 768-770 [Cal Ct App, 2d Dist 2004], Review denied, 2004 Cal Lexis 4144 [Cal 2004]).

Footnote 2:Before the statute was amended, effective January 1, 1998, CCC § 1714.45 (a) provided, in relevant part, that a manufacturer or seller shall not be liable in "a product liability action" if: (1) The product is inherently unsafe and the product is known to be unsafe by the ordinary consumer who consumes the product with the ordinary knowledge common to the community; and (2) The product is a common consumer product intended for personal consumption, such as sugar, castor oil, alcohol, tobacco, and butter, as identified in comment i to Section 402A of the Restatement (Second) of Torts.

Footnote 3:See Matter of Allstate Ins. Co. (Stolarz), 81 NY2d 219, 223 [1993] [noting that "(t)he first step in any case presenting a potential choice of law issue is to determine whether there is an actual conflict between the laws of the jurisdictions involved"]).

Footnote 4:Penal Law §260.20, enacted in 1965, was amended in 1992

Footnote 5:Plaintiff argues that the element of reliance is present, with respect to the complaint's GBL § 349 claim, and defendant argues that plaintiff's inability to show the element of reliance warrants dismissal of plaintiff's GBL § 349 claim. However, whether or not plaintiff can demonstrate the element of reliance is irrelevant, because, although a plaintiff "must show that the defendant's material deceptive act caused the [plaintiff's] injury," "reliance is not an element of a section 349 claim" (Stutman v Chemical Bank, 95 NY2d 24, 29 [2000] [citation and internal quotation marks omitted]).