Mann v. H.W. Andersen Products, Inc.

• Decision Date: 09 September 1996
• Citation: 231 A.D.2d 500,647 N.Y.S.2d 101
• Parties: Marcus MANN, etc., et al., Respondents, v. H.W. ANDERSEN PRODUCTS, INC., Appellant, et al., Defendant.
• Court: New York Supreme Court — Appellate Division

Page 101

647 N.Y.S.2d 101

231 A.D.2d 500

Marcus MANN, etc., et al., Respondents, v. H.W. ANDERSEN PRODUCTS, INC., Appellant, et al., Defendant.

Supreme Court of New York, Appellate Division,

Second Department.

Sept. 9, 1996.

Furey & Furey, P.C., Hempstead (Susan W. Darlington, of counsel), for appellant.

Antin & Ehrlich, New York City (Jeffrey S. Antin and Joseph L. Ehrlich, of counsel), for respondents.

In an action to recover damages for personal injuries, etc., the defendant H.W. Andersen Products, Inc. appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Collins, J.), dated August 22, 1995, as denied its cross motion for summary judgment dismissing the complaint insofar as it is asserted against it.

ORDERED that the order is modified by deleting the provision thereof denying that branch of the cross motion which was for summary judgment on the claims based on failure to label and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

The Supreme Court erred in denying that branch of the cross motion of H.W. Andersen which was to dismiss those causes of action based on failure to label insofar as asserted against it, as those claims are preempted pursuant to the Federal Insecticide, Fungicide, and Rodenticide Act [FIFRA] (7 U.S.C. § 136v[b]; see, Warner v. American Fluoride Corp., 204 A.D.2d 1, 616 N.Y.S.2d 534). We decline to pass on the remaining theories of liability set forth in the complaint as to H.W. Andersen Products as they were not raised by the parties in the Supreme Court.

ROSENBLATT, J.P., and SANTUCCI, JOY and HART, JJ., concur.