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Argued November 18, 2008; decided December 16, 2008
Rose v Brown & Williamson Tobacco Corp., 53 AD3d 80, affirmed.
{**11 NY3d at 549} OPINION OF THE COURT
Smith, J.
Plaintiffs claim that two cigarette companies were negligent in designing their product, in that they should have used lower levels of tar and nicotine. We agree with the Appellate Division that plaintiffs failed to prove an essential element of their case: that regular cigarettes and "light" cigarettes have the same "utility." The only "utility" of a cigarette is to [*2]gratify smokers' desires for a certain experience, and plaintiffs did not prove, or try to prove, that light cigarettes perform this function as well as regular cigarettes.
Norma Rose, who died during the pendency of this appeal, smoked for more than 40 years, consuming more than a pack a{**11 NY3d at 550} day of regular cigarettes. Beginning in the late 1960s, the products she smoked were manufactured by the American Tobacco Company and Philip Morris USA Inc. Ms. Rose quit smoking in 1993, and was diagnosed two years later with lung cancer and another condition allegedly caused by smoking. She and her husband brought a number of claims against American Tobacco's successor (Brown & Williamson Tobacco Corporation), Philip Morris and a third company. All their claims except one for negligent product design were dismissed at the trial level and are not now before us.
A jury found that American Tobacco and Philip Morris negligently designed the cigarettes Ms. Rose smoked and, in later phases of the trial, awarded compensatory and punitive damages. The Appellate Division reversed the resulting judgment, with two Justices dissenting, and granted judgment in defendants' favor (53 AD3d 80 [2008]). Plaintiffs appeal to us pursuant to CPLR 5601 (a), and we now affirm the Appellate Division's order.
In Voss v Black & Decker Mfg. Co. (59 NY2d 102, 108 [1983]), speaking of a claim of strict product liability, we said: "The plaintiff . . . is under an obligation to present evidence that the product, as designed, was not reasonably safe because there was a substantial likelihood of harm and it was feasible to design the product in a safer manner." While this is a negligence, not a strict liability, case, similar requirements apply

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