Slowley v. the City of N.Y./N.Y. City Dep't of Educ.

• Decision Date: 18 October 2011
• Citation: 931 N.Y.S.2d 489,2011 N.Y. Slip Op. 21365,33 Misc.3d 952
• Parties: Daniel SLOWLEY, an infant under the age of fourteen (14) years, by his mother and natural guardian, Karen Bentley, and Karen Bentley, individually, Plaintiff,v.The CITY OF NEW YORK/NEW YORK CITY DEPARTMENT OF EDUCATION, Sonia Stewart, Nadine Stewart, Lollytogs, Ltd, individually and d/b/a French Toast, Cookie Department Stores, Inc., Scripto–Tokai Corp., d/b/a Scriptousa, Defendant.
• Court: New York Supreme Court

33 Misc.3d 952
931 N.Y.S.2d 489
2011 N.Y. Slip Op. 21365

Daniel SLOWLEY, an infant under the age of fourteen (14) years, by his mother and natural guardian, Karen Bentley, and Karen Bentley, individually, Plaintiff,
v.
The CITY OF NEW YORK/NEW YORK CITY DEPARTMENT OF EDUCATION, Sonia Stewart, Nadine Stewart, Lollytogs, Ltd, individually and d/b/a French Toast, Cookie Department Stores, Inc., Scripto–Tokai Corp., d/b/a Scriptousa, Defendant.

Supreme Court, Queens County, New York.

Oct. 18, 2011.

[931 N.Y.S.2d 491]

Robert H. Goldberg, Esq., Goldberg & Carlton, PLLC, New York, for plaintiff.Robert W. Gordon, Esq., Corporation Counsel of the City of New York, for defendant's.William Hartlein, Esq., Ryan, Perrone & Hartlein, New York, Attorneys for defendant The City of New York.H. Lockwood Miller, Esq., Coughlin Duffy LLP, Mineola, Attorney for defendants Sonia Stewart & Nadine Stewart.PHYLLIS ORLIKOFF FLUG, J.

[33 Misc.3d 953] Defendant, Scripto–Tokai Corporation (hereinafter “Scripto”) moves for summary judgment, dismissing the Complaint and all cross-claims asserted against it. Defendants, the City of New York [33 Misc.3d 954] and the New York City Department of Education (hereinafter collectively referred to as “City”) separately move for summary judgment, dismissing the Complaint and all cross-claims asserted against it.

This is an action to recover damages for personal injuries sustained by the infant plaintiff on November 28, 2005 as a result of being severely burned when his shirt was set on fire originating from a GM9C utility lighter, imported and distributed by defendant Scripto, and manufactured in Mexico in May of 2005. At the time of the incident Daniel Slowley, who was five years old, was playing with a seven year old boy.

The papers submitted in support and in opposition demonstrate factual issues regarding, inter alia, which child ignited the lighter, whether it was intentionally ignited, and whether the boys had successfully ignited it prior to the ignition that set fire to infant plaintiff's shirt.

A conference was held May 10, 2011. The defendant New York City's motion is moot due to the stipulation of settlement and is withdrawn.

On a motion for summary judgment, the proponent “must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate an material issues of fact from the case ...” ( Winegrad v. New York Univ. Med. Center, 64 N.Y.2d 851, 852, 487 N.Y.S.2d 316, 476 N.E.2d 642 [1985] ). Once the proponent has made this showing, the burden of proof shifts to the party opposing the motion to produce evidentiary proof in admissible form to establish that material issues of fact exist which requires a jury trial ( Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986] ).

Scripto contends that it is entitled to summary judgment because plaintiff's design defect claims are preempted by federal regulations promulgated by the United States Consumer Protection Safety

[931 N.Y.S.2d 492]

Commission (hereinafter “CPSC”) pursuant to its authority under the Consumer Protection Safety Act (hereinafter “CPSA”) of 1972. Pursuant to 16 C.F.R. Part 1212, in order for a lighter to be legally imported into and sold within the United States, it must meet certain child resistancy standards. Scripto received approval from the CPSC to import and sell the GM9C lighter in December 2000, and contends that compliance with this regulation preempts plaintiff's action.

Scripto's contention was expressly rejected by the Southern District of New York in Colon v. BIC USA, Inc., 136 F.Supp.2d 196 [S.D.N.Y 2000] which held that tort claims of negligence, strict products liability, and...