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Perez v. CM Packaging Inc.

Market Share Exception Not Viable in Instant Products Liability Case; Complaint Dismissed

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DECISION/ORDER

*1  Defendants collectively move to dismiss plaintiff’s action pursuant to CPLR §3211 (a)(7). After review of the motions, together with opposition submitted thereto, and upon due deliberation, the motions are granted. The complaint is dismissed. When considering a motion to dismiss pursuant to CPLR 3211(a)(7), “the court must accept the facts as alleged in the complaint as true and accord the plaintiff the benefit of every possible favorable inference, and must determine whether the facts as alleged fit within any cognizable legal theory” (Phillips v. City of New York, 66 AD3d 170, 174, 884 NYS2d 369 [1st Dept 2009] [internal quotation marks omitted]; see also CPLR 3026).“In a products liability action, identification of the exact defendant whose product injured the plaintiff is, of course, generally required” (Hymowitz v. Eli Lilly and Co., 73 NY2d 487, 504 [1989]). “Market share liability provides an exception to the general rule that in common-law negligence actions, a plaintiff must prove that the defendant’s conduct was a cause-in-fact of the injury” (Hamilton v. Beretta U.S.A. Corp., 96 NY2d 222, 240 [2001]). Market share liability was introduced by the Court of Appeals in Hymowitz. There, the Court held that “plaintiff’s injured by the

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