Defendant Pfizer, Inc. ("defendant" or "Pfizer") moves for summary judgment in its favor dismissing the complaint in this action on statute of limitations grounds. Plaintiff Hamid Fathi ("plaintiff" or "Fathi") opposes the motion.

Pfizer is a Delaware corporation having a principal place of business in New York, New York. Pfizer manufactures and markets Lipitor, a prescription cholesterol-lowering medicine.

Fathi alleges that after taking Lipitor, he experienced symptoms of myopathy (muscle pain or weakness), peripheral neuropathy, memory loss, problems with language production, disorientation and depression. See Amended Complaint at Exh. A to motion, ¶34. Ultimately, he was diagnosed with peripheral neuropathy.^[FN1] Id. at ¶35.

Fathi filed this lawsuit against Pfizer on July 14, 2006 alleging claims for fraud, negligent misrepresentation, violation of General Business Law ("GBL") §349, product liability (failure to warn and design defect), breach of the implied warranty of merchantability and fraudulent concealment.

In support of its claim that summary judgment should be granted dismissing the complaint because the action was not timely commenced, Pfizer relies on the allegations in the amended complaint, Fathi's November 20, 2008 deposition testimony and responses to discovery demands, which reveal in relevant part:

Fathi began taking Lipitor in or about November 2002 and soon thereafter began to experience inter alia pain, numbness and tingling sensations; and [*2]

Plaintiff testified that he began feeling symptoms of peripheral neuropathy a few months prior to a June 26, 2003 visit to his neurologist.

Plaintiff's product liability causes of action are subject to a three year statute of limitations. CPLR §214-c. Under CPLR §214-c(2), Fathi's claims accrued on the date his injuries were discovered. Here, defendant argues that plaintiff experienced the primary condition on which his claims are based no later than June 26, 2003. As such, the statute of limitations expired on June 26, 2006 and this action was commenced 18 days thereafter on July 14, 2006. Since plaintiff discovered his injuries more than three years before filing suit, defendant contends summary judgment should be granted in its favor dismissing the complaint.^[FN2]

In opposition to summary judgment, plaintiff argues issue of fact exist as to when Fathi should have been aware of his primary condition because: 1) as of June 26, 2003, plaintiff's symptoms were too inconsequential to put him on notice that he had any specific condition; and 2) there is no evidence plaintiff's memory loss, confusion, depression and other cognitive symptoms had manifested themselves by June 26, 2003. Fathi also argues that even if the court [*3]concludes CPLR 214-c bars his products liability and tort claims, his claims for deceptive business practices under GBL §349 and breach of the implied warranty of merchantability should not be dismissed as they accrued after June 26, 2003.^[FN3]

In response, Pfizer counters that: Fathi's claim that his symptoms were insignificant is disingenuous and not supported by the record; the statute of limitations begins to run when plaintiff first notices symptoms and can begin to run before a medical diagnosis is made; the gradual worsening of plaintiff's symptoms does not extend the limitations period; Fathi's deposition testimony indicates that he experienced cognitive impairment and depression prior to June 26, 2003; plaintiff's common law and statutory fraud claims are merely incidental to his product liability claims ^[FN4] and as such, subject to the same three year statute of limitations; New York's informed intermediary doctrine ^[FN5] precludes the GBL §349 claim; and the implied warranty claim is coextensive with the product liability claims.

An award of summary judgment is appropriate when no issues of fact exist. See CPLR 3212(b); Sun Yau Ko v. Lincoln Sav. Bank, 99 AD2d 943 (1st Dept., 1984), aff'd 62 NY2d 938 (1984); Andre v. Pomeroy, 35 NY2d 361 (1974). In order to prevail on a motion for summary judgment, the proponent must make a prima facie showing of entitlement to judgment as a matter of law by providing sufficient evidence to eliminate any material issues of fact. Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853 (1985); Alvarez v. Prospect Hosp., 68 NY2d 320, 324 (1986). Indeed, the moving party has the burden to present evidentiary facts to establish his cause sufficiently to entitle him to judgment as a matter of law. Friends of Animals, Inc. v. Associated Fur Mfrs., Inc., 46 NY2d 1065 (1979).

While the moving party has the initial burden of proving entitlement to summary judgment (Winegrad v. NY Univ. Med. Ctr., 64 NY2d 851 (1985), once such proof has been offered, in order to defend the summary judgment motion, the opposing party must "show facts sufficient to require a trial of any issue of fact." CPLR 3212(b); Zuckerman v. City of New York, 49 NY2d 557, 562 (1980); Freedman v. Chemical Const. Corp., 43 NY2d 260 (1977); Friends of [*4]Animals, Inc. v. Associated Fur Mfrs., Inc., 46 NY2d 1065 (1979).

Product Liability Causes of Action

It is undisputed that Fathi's product liability claims (fourth and fifth causes of action) are governed by the three year limitations period provided in CPLR §214-c. As summarized in Whitney v. Agway, Inc., 238 AD2d 782, 784 (3rd Dept. 1997):

Pursuant to CPLR 214-c (2), the three-year Statute of Limitations "shall be computed from the date of discovery of the injury by the plaintiff or from the date when through the exercise of reasonable diligence such injury should have been discovered by plaintiff, whichever is earlier". This Court has previously noted that the date of discovery "will not be dependent upon the discovery of the cause of the injury" (Hedlund v County of Tompkins, 235 AD2d 980, 982). Furthermore, the term "injury" in CPLR 214-c is meant "to refer to an actual illness, physical condition or other similarly discoverable objective manifestation of the damage caused by previous exposure to an injurious substance" (Sweeney v General Print., 210 AD2d 865, 865-866, lv denied 85 NY2d 808). "[T]he phrase 'discovery of the injury' necessarily contemplates something less than full awareness that one has been damaged as a result of exposure to a particular toxic substance" (id., at 865; see, Johnson v Ashland Oil, 195 AD2d 980, 981).

In Matter of New York County DES Litigation, 89 NY2d 506, 509 (1997), the Court of Appeals held "that the time for bringing the action begins to run . . . when the injured party discovers the primary condition on which the claim is based." See also, Whitney v. Quaker Chemical Corp., 90 NY2d 845, 847 (1997)("All that is necessary to start the limitations period is that plaintiff be aware of the primary condition for which damages are sought"). In dicta, the Court of Appeals recognized that "there may be situations in which the claimant may experience early symptoms that are too isolated or inconsequential to trigger the running of the Statute of Limitations under CPLR 214-c(2)." Id., 89 NY2d at 514, n. 4.

Fathi relies on this dicta, arguing that his symptoms as of June 26, 2003 were too insignificant or inconsequential to trigger the statute of limitations. However, plaintiff's treating physicians' notations in his medical records tell a different story and reflect Fathi's experiences of ongoing burning sensations in his feet and/or legs, as follows:

1/30/03: Fathi's primary care physician noted: "When [plaintiff] goes to sleep notes hot sensation of both legs & buttocks . . ." (Exh. I to motion);

6/4/03: plaintiff again sought treatment from his primary care physician, who documented: "legs feeling warm & burning at night - not related to exercise" (Id.);

6/18/03: Fathi complained to his cardiologist of a "burning sensation in his lower extremities, occurring at rest, often at night" (Exh. J to motion);

6/26/03: Plaintiff's neurologist noted: "[Plaintiff] has had the sensation of an intense heat-like dysesthesia in both of his feet while trying to sleep at night . . . The symptoms have [*5]been present for approximately the last year" (Exh. K to motion).

Plaintiff attempts to equate his condition to those of plaintiffs in cases such as Cabrera v. Picker Int'l, Inc., 2 AD3d 308, 309 (1st Dept. 2003), where the plaintiff's symptoms were found to be isolated and inconsequential. For instance, in Cabrera, the defendant maintained that plaintiff discovered the primary condition upon which her claim for exposure to chemical fumes was based prior to September 1992 (a critical date for purposes of calculating the three year statute of limitations). However, the court affirmed the denial of defendant's motion for summary judgment, noting that plaintiff's early symptoms were too isolated or inconsequential to trigger the running of the limitations period under CPLR §214-c(2):

While plaintiff complained of shortness of breath and had intermittent coughs, her physical activities were not affected, she did not miss work until February 1993, she was not diagnosed with chronic obstructive pulmonary disease, her claimed injury, until June 1993, she did not stop working until July 1993 and she did not file a workers' compensation claim until August 1993 . . .

See also, Castiglione v. E.A. Morse & Co., Inc., 22 AD3d 934, 934-935 (3rd Dept. 2005); Johnson v. Exxon Corp., 258 AD2d 946 (4th Dept. 1999).

By contrast, the record here demonstrates Fathi physically experienced symptoms of persistent nighttime burning sensations in his feet and/or legs at least as early as January 2003, as evidenced by his seeking medical treatment for this condition from various healthcare providers, including his primary care physician, neurologist and cardiologist. This is the primary condition upon which Fathi's peripheral neuropathy claim is based, and he was undeniably aware of it no later than June 26, 2003. That his condition was subsequently diagnosed and ultimately worsened do not make his claim timely. See Whitney v. Quaker Chemical Corp., supra. Accordingly, Pfizer's motion for summary judgment is granted and the product liability claims are dismissed as they pertain to plaintiff's alleged injury of peripheral neuropathy.

Finally, as to plaintiff's claims of cognitive dysfunction and depression, which are injuries separate and apart from his peripheral neuropathy injury, Fathi did not testify with any specificity concerning the nature, frequency or severity of these alleged injuries. As the record does not conclusively establish when these conditions began to manifest themselves, Pfizer's motion for summary judgment dismissing Fathi's claims based upon cognitive impairment and depression is denied.

Fraud Causes of Action

Fathi's first cause of action alleges common law fraud based upon Pfizer's alleged material misrepresentations of fact regarding Lipitor's safety and his seventh cause of action alleges fraudulent concealment based upon Pfizer's alleged failure to disclose Lipitor's alleged dangerous side effects. Generally, fraud causes of action are subject to a six year statute of limitations. See CPLR §213(8). Citing applicable case law, defendant argues the fraud claims are merely incidental to his product liability claims and are thus subject to the same three year statute of limitations. [*6]

As previously noted, plaintiff's opposition to this motion does not address Pfizer's arguments in support of the dismissal of the common law fraud causes of action. The court agrees with defendant as to plaintiff's peripheral neuropathy injury. As set forth in New York Seven-Up Bottling Co., Inc. v. Dow Chemical Co., 96 AD2d 1051, 1052-1053 (2d Dept. 1983), aff'd 61 NY2d 828 (1984):

Since we find that plaintiff's strict products liability action is time barred, its cause of action sounding in fraud must likewise be dismissed (see Western Elec. Co. v Brenner, 41 NY2d 291; Brick v Cohn-Hall-Marx Co., 276 NY 259). The six-year fraud Statute of Limitations (CPLR 213, subd 8) is only applicable when there would be no injury but for the fraud (Glover v National Bank of Commerce, 156 App Div 247, 256). Where the allegations of fraud are only incidental to another cause of action, the fraud Statute of Limitations cannot be invoked (Brick v Cohn-Hall-Marx Co., supra). Here, the genesis of plaintiff's claim is that it was injured by a defective product. It cannot, by adding an allegation of scienter, invoke the longer period of limitations. Since Dow's alleged fraud consisted of representations made while marketing the styrofoam at the time plaintiff's plant was being constructed, such allegations are only incidental to plaintiff's cause of action sounding in products liability. Thus, plaintiff's claims are time barred.

Here, Fathi's fraud claims are also incidental to his product liability causes of action. As those claims are time barred with respect to the peripheral neuropathy injury, the first and seventh causes of action sounding in fraud must also be dismissed as time barred. See also, St. Patrick's Home for the Aged & Infirm v. Laticrete Int'l, Inc., 264 AD2d 652, 653-654 (1st Dept. 1999). Despite the fact that plaintiff does not address this point, nonetheless, Pfizer has not met its burden of proving the limitations period expired with respect to Fathi's remaining injuries which the court determined were not time barred. Accordingly, the portion of the motion seeking dismissal of the first and seventh causes of action is granted as to plaintiff's peripheral neuropathy injury, but denied with respect to the alleged cognitive dysfunction and depression injuries.

GBL §349

Plaintiff's third cause of action for defendant's alleged violation of GBL §349 is based upon allegations that Pfizer misled him and his prescribing doctor about Lipitor's safety and failed to warn of its risks. Unlike common law fraud (CPLR §213[8]), this statutory claim is subject to a three year limitations period. See CPLR §214(2); Gaidon v. Guardian Life Ins. Co. of Am., 96 NY2d 201, 210 (2001).

GBL §349 prohibits "[d]eceptive acts or practices in the conduct of any business, trade or commerce . . ." "To establish prima facie violation of GBL §349, a plaintiff must demonstrate that the defendant is engaging in consumer-oriented conduct which is deceptive or misleading in a material way, and that the plaintiff has been injured because of it (citation omitted). Deceptive acts or practices may be defined as representations or omissions likely to mislead a reasonable consumer acting reasonably under the circumstances' . . ." St. Patrick's Home for the Aged & Infirm v. Laticrete Int'l, Inc., supra, at 655.

A cause of action under GBL §349 accrues when the plaintiff has been injured by a deceptive act or practice violating the statute. Id. As plaintiff notes, it is unclear from Pfizer's [*7]motion when it contends the statute of limitations for this claim accrued. Nonetheless, plaintiff assumes, and defendant confirms in its reply memorandum of law, that Pfizer again uses the operative date of June 26, 2003, the last possible date on which Fathi's product liability claims accrued, and argues that the GBL §349 claim is timely based upon the continuing wrong doctrine since Pfizer engaged in a new deceptive act with each prescription plaintiff filled.

As with Fathi's common law fraud causes of action, Pfizer maintains that the GBL §349 claim is merely incidental to the product liability claims and since the statute of limitations has run on those claims, it has also expired on the GBL §349 claim. None of the cases defendant cites supports this exact proposition. Rather, New York Seven-Up Bottling Co., Inc. v. Dow Chemical Co., supra, and its progeny analyze only fraud claims and not claims involving GBL violations. Nor does this court's own research compel the finding that the rule in New York Seven-Up Bottling Co. should be extended to GBL claims. Prima facie causes of action for common law fraud and GBL §349, though arguably similar, contain different legal elements.^[FN6] Indeed, the two have different statutes of limitations, further leading to the conclusion that New York Seven-Up Bottling Co. and its progeny are not applicable here.

Here, Pfizer has not sustained its burden of proving that the statute of limitations has expired on Fathi's GBL §349 cause of action. Indeed, defendant offers no analysis on this point. The record is devoid of any precise date on which plaintiff claims to have been injured by Pfizer's alleged deceptive act or practice in violation of the statute and as such, the court cannot determine when the cause of action accrued and if the three year limitations period for GBL claims has expired. In light of the foregoing, it is unnecessary for the court to address plaintiff's argument that the continuing wrong doctrine tolls the statute of limitations in this action.

Finally, one point raised in Pfizer's reply memorandum of law warrants further discussion. Citing Colacicco v. Apotex, Inc., 432 F.Supp.2d 514, 552 & n.33 (E.D. Pa. 2006), aff'd 521 F.3d 253 (3d Cir. 2008), cert. granted, judgment vacated, 129 S.Ct. 1578 (2009), defendant contends that the informed intermediary doctrine applies and precludes plaintiff's [*8]claims under GBL §349 "because Plaintiff cannot, consistent with that doctrine, establish the statute's consumer directed' requirement." Pfizer Reply Memorandum of Law at p. 17; see also, footnote 5, supra. This argument, which apparently has not been addressed by any New York court, is not being considered as it is raised for the first time in Pfizer's reply papers, thereby depriving plaintiff of an opportunity to respond. See Lumbermens Mut. Cas. Co. v. Morse Shoe Co., 218 AD2d 624, 625 (1st Dept. 1995).

For the foregoing reasons, the portion of defendant's motion seeking summary judgment dismissing the third cause of action for violation of GBL §349 is denied.

Implied Warranty of Merchantability

Fathi's sixth cause of action alleging breach of the implied warranty of merchantability is premised upon his contention that Lipitor "was not safe or fit for its intended uses and purposes." See Amended Complaint at Exh. A to motion, ¶71. Pfizer's motion argues that the implied warranty claim should be dismissed because it is coextensive with plaintiff's time barred tort-based claims. See Wyda v. Makita Elec. Works, Ltd., 232 AD2d 407, 408 (2d Dept. 1996). In opposition, plaintiff counters that the claim is governed by a four year statute of limitations under U.C.C. §2-275(1) and since plaintiff was first prescribed Lipitor in November, 2002, this action was timely commenced on July 14, 2006.

Since plaintiff's tort-based claims, in part, survive this summary judgment motion, plaintiff's implied warranty claim, even if coextensive with the tort claims, must similarly survive at this time. Parenthetically, in Denny v. Ford Motor Co., 87 NY2d 248, 256 (1995), the Court of Appeals found that a cause of action for strict product liability and breach of implied warranty of merchantability are not identical. In any event, this court agrees with plaintiff that the four year statute of limitations for breach of the implied warranty of merchantability has not expired. Utilizing the earliest possible date of November 2002 when Fathi was first prescribed Lipitor, this action was clearly commenced within four years. See Whitney v. Agway, Inc., 238 AD2d 782, 785 (3rd Dept. 1997); Doyle v. Am. Home Prods. Corp., 286 AD2d 412, 413 (2d Dept. 2001). Accordingly, the portion of Pfizer's motion seeking summary judgment dismissing the sixth cause of action is denied.

Negligent Misrepresentation

Pfizer's motion does not address Fathi's second cause of action alleging negligent misrepresentation and its dismissal is therefore denied. Further, the statute of limitations on a negligent misrepresentation claim begins to run from the date on which the plaintiff relied upon the alleged misrepresentation. Lasher v. Albion Cent. Sch. Dist., 38 AD3d 1197, 1198 (4th Dept. 2007). Here, as with the fraud and GBL §349 claims which this court sustained, that date is not established on this record.

Accordingly, it is hereby

ORDERED that Pfizer's motion for summary judgment is granted to the extent that the first, fourth, fifth and seventh causes of action are dismissed with respect to plaintiff's alleged peripheral neuropathy injuries, and the motion is otherwise denied.

The Clerk is directed to enter judgment accordingly.

Counsel for the parties are directed to appear for a preliminary conference on September [*9]29, 2009 at 9:30 a.m., at I.A.S. Part 1, 111 Centre Street, Room 1127B, New York, New York.

This constitutes this Court's Decision and Order. Courtesy copies of this Decision and Order have been provided to counsel for the parties.

Dated: New York, New York

August 31, 2009

_______________________Hon. Martin Shulman, J.S.C.