Opinion
2002-00800, 2002-00801
Argued January 17, 2003.
February 13, 2003.
In an action, inter alia, for restitution and indemnification, the plaintiffs appeal (1), as limited by their brief, from so much of an order of the Supreme Court, Nassau County (McCaffrey, J.), dated December 14, 2001, as granted that branch of the defendants' motion pursuant to CPLR 3211(a)(7) which was to dismiss the complaint for failure to state a cause of action, and (2) from a judgment of the same court, dated January 2, 2002, which dismissed the complaint.
Ward Norris Heller Reidy, LLP, Rochester, N.Y. (Thomas S. D'Antonio of counsel; Eric J. Ward, Howard A. Kurland, Kathryn K. Lee, and James A. Hoare on the brief), and Nixon Peabody, LLP, Rochester, N.Y. (Henry J. DePippo of counsel), for appellants (one brief filed).
Wachtell, Lipton, Rosen Katz, New York, N.Y. (Peter C. Hein and Maura R. Grossman of counsel), and Phillips, Lytle, Hitchcock, Blaine Huber, LLP, Buffalo, N.Y. (Paul K. Stecker and Paul F. Jones of counsel), for respondent Philip Morris Incorporated.
Jones, Day, Reavis Pogue, New York, N.Y. (Steven C. Bennett and Mark R. Seiden of counsel), and Jones, Day, Reavis Pogue, Washington, D.C. (Robert F. McDermott, Jr., and Paul S. Ryerson of counsel), for respondent R.J. Reynolds Tobacco Company.
Kirkland Ellis, New York, N.Y. (Peter A. Bellacosa of counsel), for respondent Brown Williamson Tobacco Corporation.
Chadbourne Parke, LLP, New York, N.Y. (David L. Wallace and Robert S. Pruyne of counsel), for respondent British American Tobacco (Investments) Limited.
Greenberg Traurig, LLP, New York, N.Y. (Alan E. Mansfield of counsel), for respondent Lorillard Tobacco Company.
Debevoise Plimpton, New York, N.Y. (Steven Klugman and Harry Zirlin of counsel), for respondent The Council for Tobacco Research-U.S.A., Inc.
Seward Kissel, LLP, New York, N.Y. (Anthony Mansfield of counsel), for respondent The Tobacco Institute, Inc.
Davis Gilbert, LLP, New York, N.Y. (Bruce Ginsberg of counsel), for respondent Hill and Knowlton, Inc.
Skadden, Arps, Slate, Meagher Flom, LLP, New York, N.Y. (Peter J. McKenna and Eric S. Sarner of counsel), for respondent U.S. Smokeless Tobacco Company (one brief filed).
Before: ANITA R. FLORIO, J.P., WILLIAM D. FRIEDMANN, BARRY A. COZIER, WILLIAM F. MASTRO, JJ.
DECISION ORDER
ORDERED that the appeal from the order is dismissed; and it is further,
ORDERED that the judgment is affirmed; and it is further,
ORDERED that one bill of costs is awarded to the defendants.
The appeal from the intermediate order must be dismissed because the right of appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho, 39 N.Y.2d 241, 248). The issues raised on appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a][1]).
The plaintiffs, consisting of approximately 170 New York non-profit hospitals and a trade association, commenced this action to recover the unreimbursed costs of supplying health care to unspecified consumers of tobacco products. The defendants include major tobacco companies and a public relations firm. While the complaint pleads 20 independent causes of action, including common-law claims sounding in restitution, indemnification, fraud, negligence, and subrogation, as well as statutory claims pursuant to General Business Law §§ 349 and 350, the primary assertion is that the defendants have systematically conspired "[f]or at least half of a century" to fraudulently conceal the adverse health consequences of using tobacco to shift the health-related costs of smoking to the plaintiffs. The defendants moved, inter alia, to dismiss the complaint pursuant to CPLR 3211(a)(7), and the Supreme Court granted the motion. We affirm.
"[A] complaint should not be dismissed on a pleading motion so long as, when the plaintiff is given the benefit of every favorable inference, a cause of action exists" (Rovello v. Orofino Realty Co., 40 N.Y.2d 633; see West Branch Conservation Assn. v. County of Rockland, 227 A.D.2d 547).
Contrary to the plaintiffs' contention, the Supreme Court properly dismissed the first 19 causes of action in the complaint on the ground that the plaintiffs' purported economic injury is entirely derivative of the tobacco-related harm suffered by the individual patients and therefore too remote to permit recovery (see Eastern States Health Welfare Fund v. Philip Morris, Inc., 188 Misc.2d 638; Laborers Local 17 Health and Benefit Fund v. Philip Morris, Inc., 191 F.3d 229, cert denied 528 U.S. 1080; Assn. of Wash. Pub. Hosp. Dists. v. Philip Morris, Inc., 241 F.3d 696, cert denied 534 U.S. 891).
The plaintiffs' 20th cause of action to recover damages based on common-law subrogation was properly dismissed because the plaintiffs failed to identify the individual patients and their particular injuries and specify facts which, if proven, would establish liability (see Eastern States Health Welfare Fund v. Philip Morris, Inc., supra at 252).
FLORIO, J.P., FRIEDMANN, COZIER and MASTRO, JJ., concur.