Miller v. Akron Paint & Varnish, Inc.

254 A.D.2d 464, 679 N.Y.S.2d 316, 1998 N.Y. App. Div. LEXIS 11262

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 26, 1998
• Status: Published

Opinion

In a maritime action to, inter alia, recover damages for wrongful death, maintained in the Courts of this State pursuant to the “saving to suitors clause” of 28 USC § 1333, the plaintiff appeals from so much of an order of the Supreme Court, Kings County (Huttner, J.), entered September 4, 1997, as granted the defendants’ respective motions pursuant to CPLR 3211 (a) (7) to dismiss the second amended complaint and denied his cross application for leave to serve a third amended complaint.

Ordered that the order is affirmed insofar as appealed from, with one bill of costs to the respondents appearing separately and filing separate briefs.

The court properly dismissed the plaintiff’s second amended complaint (see, Miller v John A. Keeffe, P. C., 164 AD2d 933). That complaint failed to allege specifically how the exposure of the plaintiff’s decedent to benzene and benzene-containing products led to his death from lymphoma. Moreover, that complaint was deficient in failing to specify the brands of benzene and benzene-containing products to which the decedent was exposed (see, DaSilva v American Tobacco Co., 175 Misc 2d 424; Cresser v American Tobacco Co., 174 Misc 2d 1).

Furthermore, it cannot be said that the court improvidently exercised its discretion in denying the plaintiff leave to amend his complaint for a third time (see, Duffy v Bass & DAllesandro, 245 AD2d 333). Rosenblatt, J. P., Copertino, Sullivan and Altman, JJ., concur.