LIZ v. (And a Third-Party Action). (1998)

In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Queens County (Schmidt, J.), dated April 9, 1997, which denied its motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.

The plaintiff Freddy Liz allegedly sustained physical injuries when vapor from a can of BIN Primer Sealer Stain-Killer, a spray paint manufactured by the defendant, was ignited by a pilot light in the plaintiffs' kitchen.   The plaintiff and his wife commenced the instant action, inter alia, to recover damages based on negligence, strict product liability, and breach of implied and express warranties.

 To the extent that the plaintiffs' causes of action are predicated upon a theory of failure to warn, they are preempted by the Federal Hazardous Substance Act (see, Wallace v. Parks Corp., 212 A.D.2d 132, 629 N.Y.S.2d 570;  Warner v. American Fluoride Corp., 204 A.D.2d 1, 616 N.Y.S.2d 534;  Moss v. Parks Corp., 985 F.2d 736, 741, cert. denied 509 U.S. 906, 113 S.Ct. 2999, 125 L.Ed.2d 693).   Further, to the extent that the plaintiffs' causes of action are based on a manufacturing defect theory, they also should have been dismissed because of the plaintiffs' spoliation of evidence (see, Kirkland v. New York City Hous. Auth., 236 A.D.2d 170, 666 N.Y.S.2d 609;   Lee v. Boyle-Midway Household Products, Inc., 792 F.Supp. 1001).

 Finally, the court erred in not dismissing those causes of action predicated on a design defect theory, as the plaintiffs failed to demonstrate that it was feasible to design the product in a safer manner (see, Voss v. Black & Decker Mfg. Co., 59 N.Y.2d 102, 108, 463 N.Y.S.2d 398, 450 N.E.2d 204).

MEMORANDUM BY THE COURT.