RESTREPO v. ROCKLAND CORPORATION (2007)

In a products liability action, inter alia, to recover damages for personal injuries, etc., the defendant appeals from so much of an order of the Supreme Court, Queens County (Schulman, J.), dated January 3, 2006, as denied that branch of its motion which was for summary judgment dismissing the first and second causes of action based on negligent design or manufacture.

ORDERED that the order is affirmed insofar as appealed from, with costs.

 The Supreme Court properly denied that branch of the defendant's motion which was for summary judgment dismissing the plaintiff's causes of action based on negligent design or manufacture.   As the court properly noted, these causes of action were not preempted by the Federal Insecticide, Fungicide, and Rodenticide Act, 7 USC § 136 et seq. (hereinafter FIFRA), as FIFRA only preempts state law causes of action based on inadequate labeling or a failure to warn (see State of New York v. Fermenta ASC Corp., 238 A.D.2d 400, 402, 656 N.Y.S.2d 342;  Warner v. American Fluoride Corp., 204 A.D.2d 1, 5-7, 11-14, 616 N.Y.S.2d 534).

 As to negligent design or manufacture, “the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact.   Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers” (citations omitted) (Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572).   The defendant cannot meet its burden by pointing to gaps in its opponent's proof (Ramos v. Mac Laundry Hemp, Inc., 22 A.D.3d 822, 803 N.Y.S.2d 165;  Wolff v. New York City Tr. Auth., 21 A.D.3d 956, 957, 801 N.Y.S.2d 345;  Mennerich v. Esposito, 4 A.D.3d 399, 400-401, 772 N.Y.S.2d 91;  Dalton v. Educational Testing Serv., 294 A.D.2d 462, 463, 742 N.Y.S.2d 364).   Here, the defendant never put forth any proof either that the decedent did not use the product, or that the product did not proximately cause his illness or death.   Therefore, it failed to establish its prima facie entitlement to judgment as a matter of law, regardless of the sufficiency of the plaintiffs' opposing papers (see Ayotte v. Gervasio, 81 N.Y.2d 1062, 1063, 601 N.Y.S.2d 463, 619 N.E.2d 400;  Mariaca-Olmos v. Mizrhy, 226 A.D.2d 437, 438, 640 N.Y.S.2d 604).

In light of this determination, the defendant's remaining contention need not be reached.