Tone v. Studin

Appellate Division of the Supreme Court of New York

Tone v. Studin

2017 NY Slip Op 2461, 148 A.D.3d 1205, 51 N.Y.S.3d 548

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 29, 2017

Docket2015-01649

StatusPublished

Cited by5 cases

This text of 2017 NY Slip Op 2461 (Tone v. Studin) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Tone v. Studin, 2017 NY Slip Op 2461, 148 A.D.3d 1205, 51 N.Y.S.3d 548 (N.Y. Ct. App. 2017).

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Opinion

In an action, inter alia, to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (O’Donoghue, J.), entered January 20, 2015, which granted the motion of the defendant Sanofi-Aventis U.S., LLC, for summary judgment dismissing the complaint insofar as asserted against it.

Ordered that the order is affirmed, with costs.

Contrary to the plaintiff’s contentions, the Supreme Court properly determined that the causes of action against the defendant Sanofi-Aventis U.S., LLC (hereinafter Sanofi), were *1206 preempted by the Federal Food, Drug, and Cosmetic Act, as amended by the Medical Device Amendments of 1976 (see 21 USC § 360 et seq.). The causes of action asserted against Sanofi challenge the safety and effectiveness of a medical device and seek to impose requirements that are “different from, or in addition to,” federal requirements (21 USC § 360k [a] [1]). They are therefore preempted by federal law (see 21 USC § 360k [a]; Riegel v Medtronic, Inc., 552 US 312, 321-322 [2008]; Pitkow v Lautin, 139 AD3d 488, 488-489 [2016]; Mitaro v Medtronic, Inc., 73 AD3d 1142 [2010]).

Further, the Supreme Court properly rejected the plaintiffs contention, pursuant to CPLR 3212 (f), that summary judgment was premature because discovery was not yet complete. The plaintiff failed to demonstrate that discovery might lead to relevant evidence or that the facts essential to justify opposition to the motion were exclusively within the knowledge and control of Sanofi (see CPLR 3212 [f]; Singh v Avis Rent A Car Sys., Inc., 119 AD3d 768, 770 [2014]; Boorstein v 1261 48th St. Condominium, 96 AD3d 703, 704 [2012]). The plaintiffs mere hope that some evidence might be uncovered during further discovery is insufficient to deny summary judgment (see Singh v Avis Rent A Car Sys., Inc., 119 AD3d at 770; Lopez v WS Distrib., Inc., 34 AD3d 759, 760 [2006]).

Accordingly, the Supreme Court properly granted Sanofi’s motion for summary judgment dismissing the complaint insofar as asserted against it.

Dillon, J.P., Sgroi, Hinds-Radix and Maltese, JJ., concur.

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In an action, inter alia, to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (O’Donoghue, J.), entered January 20, 2015, which granted the motion of the defendant Sanofi-Aventis U.S., LLC, for summary judgment dismissing the complaint insofar as asserted against it.

Ordered that the order is affirmed, with costs.

Contrary to the plaintiff’s contentions, the Supreme Court properly determined that the causes of action against the defendant Sanofi-Aventis U.S., LLC (hereinafter Sanofi), were *1206 preempted by the Federal Food, Drug, and Cosmetic Act, as amended by the Medical Device Amendments of 1976 (see 21 USC § 360 et seq.). The causes of action asserted against Sanofi challenge the safety and effectiveness of a medical device and seek to impose requirements that are “different from, or in addition to,” federal requirements (21 USC § 360k [a] [1]). They are therefore preempted by federal law (see 21 USC § 360k [a]; Riegel v Medtronic, Inc., 552 US 312, 321-322 [2008]; Pitkow v Lautin, 139 AD3d 488, 488-489 [2016]; Mitaro v Medtronic, Inc., 73 AD3d 1142 [2010]).

Further, the Supreme Court properly rejected the plaintiffs contention, pursuant to CPLR 3212 (f), that summary judgment was premature because discovery was not yet complete. The plaintiff failed to demonstrate that discovery might lead to relevant evidence or that the facts essential to justify opposition to the motion were exclusively within the knowledge and control of Sanofi (see CPLR 3212 [f]; Singh v Avis Rent A Car Sys., Inc., 119 AD3d 768, 770 [2014]; Boorstein v 1261 48th St. Condominium, 96 AD3d 703, 704 [2012]). The plaintiffs mere hope that some evidence might be uncovered during further discovery is insufficient to deny summary judgment (see Singh v Avis Rent A Car Sys., Inc., 119 AD3d at 770; Lopez v WS Distrib., Inc., 34 AD3d 759, 760 [2006]).

Accordingly, the Supreme Court properly granted Sanofi’s motion for summary judgment dismissing the complaint insofar as asserted against it.

Dillon, J.P., Sgroi, Hinds-Radix and Maltese, JJ., concur.

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Bluebook (online)

2017 NY Slip Op 2461, 148 A.D.3d 1205, 51 N.Y.S.3d 548, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tone-v-studin-nyappdiv-2017.

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