BABALOLA v. [And A Third Party Action]

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Supreme Court, Appellate Division, First Department, New York.

Olayinka BABALOLA, et al., Plaintiffs-Respondents, v. CRYSTAL CHEMICALS, INC., et al., Defendants-Appellants, Modern Sanitation Systems, Inc., Defendant. [And A Third Party Action]

Decided: February 23, 1999

ELLERIN, J.P., WILLIAMS, LERNER and RUBIN, JJ. Irving Gingold, for plaintiffs-respondents. Richard J. Wechter and Joseph A. Oliva, for defendants-appellants.

Order, Supreme Court, Bronx County (Luis Gonzalez, J.), entered March 27, 1997, which, inter alia, denied Crystal's motion to dismiss plaintiffs' first cause of action in the third amended complaint and Canberra's cross-motion to dismiss the fifth cause of action, unanimously modified, on the law, to the extent of granting Crystal's motion to dismiss plaintiff's first cause of action, and otherwise affirmed, without costs.

 The product label in question was duly reviewed by the Environmental Protection Agency (“EPA”) and found to be in compliance in all regards with the requirements of the Federal Insecticide, Fungicide, and Rodenticide Act ( [FIFRA]  7 U.S.C. § 136 et seq.), including those involved in the supplemental distribution process.   Accordingly, in the absence of any extra-label evidence that defendant Crystal sought to mislead the public by holding itself out as the manufacturer of the product, plaintiff's first cause of action, a negligence claim based upon a failure to properly inspect and test the product, must fail since FIFRA preempts causes of action implicating the sufficiency of the label against a product distributor (see, Olayinka Babalola v. Crystal Chemicals, Inc., 225 A.D.2d 370, 371, 644 N.Y.S.2d 1;   Warner v. Amer. Fluoride Corp., 204 A.D.2d 1, 13, 616 N.Y.S.2d 534).

 Defendant-manufacturer Canberra's motion to dismiss plaintiff's fifth cause of action was properly denied, since FIFRA does not preclude a negligent testing claim against a manufacturer (Worm v. American Cyanamid, 4th Cir., 5 F.3d 744, 749;  Warner v. Amer. Fluoride Corp., supra ).

MEMORANDUM DECISION.