 NOTE FROM THE EDITOR:
Greetings and Happy 2026! We have an action-packed edition of Products Liability Pointers.
First, there is some significant legislative news.
On December 5, 2025, New York State Governor Kathy Hochul vetoed the latest version of the Grieving Families Act for the fourth time. In her veto memo, Governor Hochul offered support for the cause, but again cited concerns over costs, economic uncertainty, and unintended consequences to New York consumers needing health care.
New York’s Wrongful Death Statute, enacted in 1847, limits recovery to pecuniary loss for damages such as lost wages, lost support, and funeral expenses. The passing of this legislation would have completely overhauled wrongful death claims by permitting recovery for emotional damages and expanding the class of persons who can seek recovery for a fatality.
Next, dramatic changes to the timing of third-party actions (impleaders) have been enacted—representing the most significant shift in third-party practice in decades. Commonly referred to as the AVOID Act, Senate Bill 8071-A was signed on December 19, 2025, and becomes effective on April 18, 2026. Contract‑based indemnity claims must generally be brought within 60 days after the defendant serves its answer, and non‑contractual claims (e.g., contribution or common‑law indemnity) must be asserted within 60 days of "becoming aware" that another party may be responsible.
While this legislation was primarily aimed at NYS Labor Law/ construction accident claims, its impact will be felt across the litigation spectrum, including product liability claims.
Please read the excellent analysis from my partner David Adams, chair of our NYS Labor Law (Scaffold Law) & Construction Defect team: The AVOID Act and New York Labor Law Defense: Expect More Litigation, Not Less.
By way of an update, modest Chapter Amendments were recently made, and the updated CPLR § 1007 now holds:
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Defendants shall not file a third-party summons and complaint more than ninety days after serving its answer without an order of the court;
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No third-party summons and complaint may be filed after the filing of a note of issue unless upon good cause shown or in the interest of justice.
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An action filed in violation of this subdivision shall be severed or dismissed without prejudice.
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Third-party practice in relation to a claim against plaintiff’s employer shall be commenced within ninety days of the later of the date the identity of the employer becomes known to the defendant or third-party defendant, or the date the defendant or third-party defendant knows or should know the plaintiff sustained a “grave injury” as such term is defined in section 11 of the workers’ compensation law.
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Will not be retroactive, but apply to cases commenced on or after April 18, 2026.
Hurwitz Fine P.C. is proud to announce the continued expansion of its Northeast presence with the addition of three seasoned insurance coverage partners and the opening of new offices in the Boston, MA area and in Concord, NH.
Join us in welcoming Barbara A. O’Donnell, Alexander G. Henlin, and Iryna N. Dore.
And now for product news:
Our resident jurisdiction expert Mike Williams writes below on yet another legislative veto by Governor Hochul, this one dealing with a foreign corporation's application for authority to do business in this state compelling consent to jurisdiction of the courts of New York.
Please join Mike and Jerry Lenihan as they present a webinar on Tuesday, February 24 at noon: Telling Courts “No”: Personal Jurisdiction Defenses in High-Stakes Litigation
Brigette Whitmore provides a recap of some of the more notable products liability decisions from 2025, including:
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On-line betting platform not a “product” subject to strict products liability;
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Defective product verdict under New York’s “deceptive business practices” law withstands appeal:
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Mass-shooting liability claims against social media companies dismissed because there is no products liability exception to Section 230 immunity;
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Gun manufacturer’s knowing violation of New York law an exemption to federal immunity.
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FDA preemepts state law medical device product liability claims.
Jason Goodman, partner in our Asbestos & Toxic Tort team, provides a recap of recent developments in New York asbestos litigation.
And now for this month’s dad joke:
How do you stay warm when your boiler breaks down?
Stand in the corner, it’s always 90 degrees!
-VCP
V. Christopher Potenza ■ Member
Hurwitz Fine P.C.
The Liberty Building
424 Main Street, Suite 1300 ■ Buffalo, NY 14202
tel (716) 849-8900 ■ cell (716) 523-8941 ■ fax (716) 855-0874
Email: [email protected]
HF Website: http://www.hurwitzfine.com
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Don’t forget to subscribe to our other publications:
Coverage Pointers: This twice-monthly electronic newsletter summarizes important insurance law decisions from appellate courts in New York State with the occasional snapshot across borders. Contact Dan Kohane at [email protected] to subscribe.
Labor Law Pointers: Labor Law Pointers offers a monthly review and analysis of every New York State Labor Law case decided during the month by the Court of Appeals and all four Departments. Contact Dave Adams at [email protected] to subscribe.
Medical & Nursing Home Liability Pointers: Medical & Nursing Home Liability Pointers provides the latest news, developments, and analysis of recent court decisions impacting the medical and long-term care communities. Contact Liz Midgley at [email protected] to subscribe.
Premises Pointers: This monthly electronic newsletter covers current cases, trends and developments involving premises liability and general litigation. Contact Jody Briandi at [email protected] to subscribe.
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Mike’s Jurisdiction: Governor Hochul Again Vetoes General Jurisdiction By Compelled Consent
By: Michael J. Williams
[email protected]
On December 19, 2025, New York Governor Kathy Hochul vetoed New York State Assembly Bill A8303 that would have required every “foreign corporation, limited liability company, limited partnership or limited liability partnership authorized to do business in the state” to “consent to the jurisdiction of the courts of this state for all actions." Related bills similarly seeking to modify New York Civil Practice Law and Rules, the Business Corporation Law, the General Associations Law, the Limited Liability Company Law, the Not-for-Profit Corporation Law and the Partnership Law have failed since the 2019-2020 legislative session. Governor Hochul previously vetoed these efforts in 2021 and 2023.
At the heart of this general jurisdiction by “consent” issue is Aybar v. Aybar, 37 N.Y.3d 274 (2021). The Court of Appeals expressly overruled Bagdon v. Philadelphia & Reading Coal & Iron Co., 217 N.Y. 432 (1916) to hold that a foreign business’ decision to register to do business in New York created no inferred consent to submit to New York’s courts for all matters related or unrelated to the state. The Court of Appeals further stated, “as our conclusion rests solely on New York law grounds” it would “express no opinion on the federal due process issue presented by the parties.” Id. at 291.
Aybar proved prescient in grounding itself firmly in state law. Soon afterwards, in Mallory v. Norfolk S. Ry. Co., 600 U.S 122 (2023), the Supreme Court of the United States followed its controlling if dormant “consent” doctrine of Pennsylvania Fire Ins. Co. of Philadelphia v. Gold Issue Mining & Milling Co., 243 U.S. 93, (1916). This upheld, in a 4-1-4 opinion, that the Due Process Clause permitted Pennsylvania to predicate foreign business registration on consent to general jurisdiction. Mallory held that the “consent” doctrine was a parallel alternative to the Due Process rule that general jurisdiction may be found only where a corporation is “at home” such as its place of incorporation or principal place of business.
The Mallory opinion held contrary to the opinion of the Pennsylvania Supreme Court as well as those of other state courts such as New York and California. However, the critical fifth vote (Alito, J.) argued, “[b]ecause the right of an out-of-state corporation to do business in another State is based on the dormant Commerce Clause, it stands to reason that this doctrine may also limit a State's authority to condition that right.” The Pennsylvania Supreme Court did not address this alternative argument and certiorari was not granted as to that question. It remains a contested issue on remand and an available argument should legislation such as A8303 ever pass.
For now, however, in the only reported New York case following Mallory (Amelia Mar. Group Ltd. v. Integr8 Fuels Am. LLC, 2024 N.Y. Misc. LEXIS 5841, 2024 NY Slip Op 33075 [New York Co. Sept. 3, 2024]), the court quoted McKinney’s (2023) for a succinct statement of current law: “In light of Aybar, the only way New York can take advantage of Mallory is if the Legislature adopts, and the Governor signs, a bill that explicitly says something along the following lines: a corporation’s obtaining of authorization to do business in New York ‘constitutes consent to the jurisdiction of the courts of this state for all actions against such corporation”. To date, Governor Hochul has prudently prevented such language from becoming the law of New York to the detriment of not-for-profit and business entities, and from further overburdening our court system with matters unrelated to New York interests.
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Products Liability Cases of Note
By: Brigette R. Whitmore
brw@hurwitzfine.com
A main take-away from the decisions of 2025 reflect how the Courts continue to grapple with technology and online platforms. With social media artificial intelligence, cryptocurrencies, and their supporting platforms becoming more prevalent, we anticipate that the Court will continue to further elaborate on what constitutes “products” subject to strict liability that flow in these new arenas.
12/11/2025 De Leon et al v. DraftKings, Inc.
United States District Court, Southern District of New York
No products liability claims against online gambling site because an online betting service is not a physical product and the plaintiffs alleged no physical harm
The Southern District of New York dismissed all plaintiffs’ claims against an online gambling platform. Four plaintiffs sued DraftKings, Inc., and related entities, alleging, among other claims, strict products liability and negligence-based products liability claims for design defect and failure to warn. The plaintiffs alleged that they became addicted to online gambling and suffered both financial as well as emotional harm from using the defendants’ app to gamble on sports.
Plaintiffs argued that the overall design of the DraftKings platform is addictive and the defendants failed to warn users of the substantial risk posed by the addictive nature of the app’s features, such as automated push notifications informed by the user’s data, escalating default wagers based on a user’s prior betting history, and the lack of income verifications or deposit limits.
The Court granted the defendants’ motion to dismiss the plaintiffs’ complaint, ruling that the “product” was an online betting service, which is not a physical product and is not generally covered by products-liability law. The Court further found that, even if products liability law could apply to certain online services, plaintiffs would still be required to plead physical injuries. They did not, and no narrow exception for emotional suffering without physical injury applied.
12/11/2025 Boateng v. BMW of N.A., LLC
United States Court of Appeals for the Second Circuit
Second Circuit affirms $1.9 million jury award in products case based solely on "deceptive business practices" claim under New York General Business Law § 349
The Second Circuit upheld the trial court’s denial of the post-trial motions of the BMW defendants to vacate the jury verdict for the plaintiff of $1.9 million. The plaintiff alleged that he had suffered a partial thumb amputation due to his BMW X5’s soft-close feature activating accidentally. The soft-close function automatically closes a car door when the door is approximately six millimeters from being closed to obviate having to slam a car door shut.
The case went to trial on design defect and failure to warn products liability claims, as well claims under New York General Business Law (GBL) § 349 claim, which prohibits “deceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service.” To establish a claim under GBL § 349, a plaintiff must prove that (1) the defendant’s deceptive acts were directed at consumers, (2) the acts are misleading in a material way, and (3) the plaintiff has been injured as a result.
The Court noted there was evidence presented that the defendants were aware of 44 incidents from the soft-close feature in the years prior to the plaintiff’s injury, the plaintiff had not been made aware of the potential dangers of the soft-close feature, and the owner’s manual only warned of a “danger of pinching.” As such, the Second Circuit ruled that the jury could have reasonably found that the defendants’ failure to disclose the additional risks that came with the soft-close door feature versus a standard door was materially misleading, despite there being a “no cause” on plaintiff’s on design defect and failure to warn products liability claims.
07/25/2025 Patterson v. Meta Platforms, Inc.
Appellate Division, Fourth Department
Mass-shooting liability claims against social media companies dismissed because there is no products liability exception to Section 230 immunity
In the aftermath of the tragic mass shooting at a grocery store in Buffalo, New York, survivors of the shooting as well as the estates of the victims of the shooting initiated civil litigation against numerous social media platforms. The plaintiffs asserted various tort causes of action against social media defendants Meta Platforms, Inc. (formerly Facebook), Instagram LLC, Snap, Inc., Alphabet, Inc., Google LLC, YouTube, LLC, Discord, Inc., Reddit, Inc., Twitch Interactive, Inc., Amazon.com, Inc., and 4chan Community Support, LLC. These social media platforms were used by the shooter at some point before or during the attack.
The plaintiffs alleged that the social media platforms at issue were defectively designed to include content-recommendation algorithms that fed a steady stream of racist and violent content to the shooter, who over time became motivated to kill Black people. The plaintiffs further alleged that the content-recommendation algorithms addicted the shooter to the social media defendants’ platforms, resulting in the shooter’s radicalization and that the platforms were designed to exploit the neurological vulnerabilities of users like the shooter.
The Fourth Department reversed the lower Court’s order, and granted the social media defendants’ motions to dismiss. The Court noted that Section 230 of the Communications Decency Act (47 U.S.C.S. § 230) created immunity to any cause of action that seeks liability on computer service providers for information originating from third-party users of their service. The Fourth Department ruled that there is no exception to Section 230 immunity for products liability claims, and the content-recommendation algorithms used by some of the social media defendants did not deprive those defendants of their status as publishers of third-party content. The Court found that the algorithms were the tools of the social media companies to accomplish traditional editorial functions, and the Court further noted that the First Amendment would also protect the social media defendants if the algorithms created first-party content.
07/25/2025 Salter v. Meta Platforms, Inc.
Appellate Division, Fourth Department
Federal statutory protection for firearm manufacturers did not warrant dismissal of a magazine lock manufacturer where there were sufficient allegations that the manufacturer knowingly violated a state law and aided and abetted a shooter’s violation of state law
In a related civil action regarding the same mass shooting at a grocery store in Buffalo, New York, survivors of the shooting as well as the estates of the victims of the shooting also initiated civil litigation against parties who were allegedly involved in arming the shooter with firearms and body armor. The Fourth Department considered claims against the manufacturer of a magazine lock installed on the firearm the shooter used.
The Court noted that a federal statute, the Protection of Lawful Commerce in Arms Act (PLCAA) (15 USC § 7901 et seq.), generally provides immunity to manufacturers, distributors, dealers, and importers of firearms or ammunition products and their trade associations for the harm solely caused by the criminal or unlawful misuse of firearm products or ammunition products by others when the products functioned as designed and intended. The Court found that the magazine lock was a qualified product under that statute. However, because there was evidence that the manufacturer knowingly violated state law regarding the sale and that its conduct aided and abetted the shooter’s violation of New York’s SAFE Act, an exception to immunity applied, and the Court found that the claims should not be dismissed.
The Court noted allegations that the magazine lock manufacturer knowingly and falsely promoted its lock as bringing customers’ rifles into compliance with New York law and, in its packaging and videos, instructed customers on how to remove the permanent lock to facilitate violations of New York’s SAFE Act. As such, the Fourth Department unanimously affirmed the lower court’s order denying the magazine lock manufacturer’s motion to dismiss and found that the allegations in the complaint were sufficient to withstand dismissal.
03/08/2025 Gallego v. Tandem Diabetes Care, Inc.
United States District Court, Southern District of New York
Plaintiff’s claims dismissed because the Medical Device Amendments to the Food, Drug, and Cosmetic Act expressly preempts state law claims that would impose requirements on medical devices that differ from federal requirements
An action was commenced by the decedent’s estate regarding an insulin pump used by the decedent asserting claims of strict products liability based on a manufacturing defect, negligent defective design, negligence, strict products liability based on failure to warn, breach of implied warranty of merchantability and wrongful death. The defendant moved to dismiss the action on preemption grounds. The Eastern District of New York ruled that the plaintiff’s claims were preempted by the Medical Device Amendments (MDA) to the Food, Drug, and Cosmetic Act, as the insulin pump at issue was subject to the FDA’s pre-market approval process.
The Court ruled that the MDA preempts any state laws that impose safety and effectiveness requirements that are different from or in addition to the pre-market approval requirements. The Court partially granted the motion to dismiss; however, the negligent design claim and related wrongful death claim were dismissed without prejudice to file an amended complaint to the extent the plaintiff could allege a non-preempted negligent design defect claim.
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Asbestos and Toxic Torts
By: Jason A. Goodman
[email protected]
2025 was another busy year for asbestos litigation in New York. There was a 26% increase in asbestos-related filings from 2024 to 2025. The increase was seen in both mesothelioma and lung cancer filings. Further, asbestos cases with at least some talc component now make up approximately 21% of asbestos filings nationally.
There were two plaintiffs’ verdicts in New York last year, one in upstate and one in NYCAL.
In Estate of Anna Bishop v. R.T. Vanderbilt (Sup.Ct. of NY, St. Lawrence Co., Index No. EFCV-22-164221), a St. Lawrence County jury awarded $12.25 million in damages ($4.5 million in compensatory damages and $7.75 million in punitive damages). Anna Bishop died in 2023 at 78 years old three months after her diagnosis with mesothelioma. It was alleged at trial that she lived in the vicinity of the Vanderbilt talc mine in Gouverneur, New York. There was evidence that Vanderbilt talc contained asbestos and that Vanderbilt employees and neighbors of the Vanderbilt mines had a higher incidence of mesothelioma than the general population.
In Durbec v. Mario & DiBono Plastering Co., Inc. (In re: N.Y.C. Asbestos Litigation Index No. EFCV-22-090166) a New York County jury awarded $117 million in damages to a 75 year-old man who was diagnosed with mesothelioma. William Durbec alleged that he was exposed to asbestos as a sheet metal worker and while serving in the Vietnam War. He alleged direct exposure from chipping fireproofing materials and bystander exposure to spray fireproofing during the construction of the World Trade Center. The $117 million verdict consisted of $40 million for past pain and suffering, $38 million for future pain and suffering, $20 million for past loss of consortium, and $19 million for future loss of consortium.
In addition to the two jury verdicts, the First Department affirmed a 2024 verdict in NYCAL that awarded $26.5 million ($6.6 million past pain and suffering for 77 months and $19.9 million for future pain and suffering for 17.5 years) verdict fining that the award did not deviate from what is legally considered to be reasonable compensation. Maffei v. A.O. Smith, Co. (In re: N.Y.C. Asbestos Litigation), 236 A.D. 3d 493 (1st Dept. 2025).
In some good news for asbestos defendants, a New York County Trial Judge set aside a 2023 $28 million lung cancer verdict and ordered a new trial because plaintiff failed to disclose 54 bankruptcy trust claims and 35 settlements related to plaintiff’s prior asbestosis claim. Petro v. AERCO Int’l, Inc., (In re: N.Y.C. Asbestos Litigation), 225 NY Slip. Op. 32855(U) (Sup Ct, NY County 2025). The Court held that the disclosure of the prior trust claims and settlements claims “would have probably changed the apportionment of liability in the outcome, had they been part of the trial.” Id. This ruling reiterates that bankruptcy trust disclosure in New York is mandatory, and the judiciary continues to recognize that the failure to disclose these claims and payments is fundamentally unfair.
Finally, we welcome two new upstate asbestos administrative Judges. Hon. Laura M. Jordan, J.S.C. will now be the asbestos administrative Judge in the Third Judicial District which is comprised of Albany, Schoharie, Greene, Columbia, Rensselaer, Ulster, and Sullivan Counties. Further, Hon. Patrick J. O’Sullivan, J.S.C. will now be the asbestos administrative Judge in the Sixth Judicial District which is comprised of Broome, Chemung, Chenango, Cortland, Delaware, Madison, Otsego, Schuyler, Tioga, and Tompkins Counties.
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