

Tone v Studin (2017 NY Slip Op 02461)





Tone v Studin


2017 NY Slip Op 02461


Decided on March 29, 2017


Appellate Division, Second Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on March 29, 2017
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

MARK C. DILLON, J.P.
SANDRA L. SGROI
SYLVIA O. HINDS-RADIX
JOSEPH J. MALTESE, JJ.


2015-01649
 (Index No. 700559/13)

[*1]Zoe Tone, appellant, 
vJoel R. Studin, etc., defendant, Sanofi-Aventis U.S., LLC, respondent.


Massimo & Panetta, P.C., Mineola, NY (Frank C. Panetta of counsel), for appellant.
Troutman Sanders LLP, New York, NY (N. Karen Deming, Aurora Cassirer, S. Eric Rumanek, pro hac vice, and Kevin Wallace of counsel), for respondent.

DECISION & ORDER
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 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; Pitkow v Lautin, 139 AD3d 488, 488-489; Mitaro v Medtronic, Inc., 73 AD3d 1142).
Further, the Supreme Court properly rejected the plaintiff's 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; Boorstein v 1261 48th St. Condominium, 96 AD3d 703, 704). The plaintiff's 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).
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.
ENTER:
Aprilanne Agostino
Clerk of the Court




