PACK SOJA v. Sun Sportswear, Incorporated, and Grace International Apparel, Inc., Appellants.

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

Dustin Allen PACK, an Infant, by Thomas S. SOJA, His Guardian Ad Litem, Respondent, v. E.R.O. INDUSTRIES, INC., et al., Defendants, Sun Sportswear, Incorporated, and Grace International Apparel, Inc., Appellants.

Decided: March 13, 1998

Before PINE, J.P., and WISNER, CALLAHAN, BOEHM and FALLON, JJ. Getnick, Livingston, Atkinson, Gigliotti & Priore, L.L.P. by Michael Getnick, Utica, for Defendant-Appellant and Third-Party Grace. Coulter, Fraser, Bolton, Bird & Ventre by Richard Bakalor, Syacuse, for Defendant-Appellant and Third-Party Plaintiff Sun Sportswear, Inc. Louis T. Brindisi by Stephanie Palmer, Utica, for Plaintiff-Respondent.

Eight-year-old Dustin Allen Pack was lying in a sleeping bag watching television and playing with a cigarette lighter when the lighter ignited his sleeping bag and clothing, causing severe burns.   At the time, Dustin was wearing a T-shirt sold by defendant Sun Sportswear, Incorporated (Sun), and a flannel shirt sold by defendant Grace International Apparel, Inc. (Grace).  Thereafter, Dustin, by his guardian ad litem, commenced this action to recover damages based on strict liability, negligence and breach of implied and express warranties.

Subsequently, Sun and Grace each moved for summary judgment dismissing the complaint against them, asserting, inter alia, that the State common-law causes of action were preempted by the Federal Flammable Fabrics Act (FFA) (see, Flammable Fabrics Act, 15 U.S.C. § 1191 et seq.) and that the claims were governed by the basic flammability standard for clothing textiles, Commercial Standard (CS) 191-53, under the FFA and its implementing regulations.   Plaintiff contends that there was no preemption and that the more stringent flammability standard for children's sleepwear, FF 3-71, is applicable.   Supreme Court rejected the preemption argument and granted the motions only to the extent of dismissing that part of the third cause of action alleging breach of express warranty and that part of the second cause of action seeking punitive damages.

 We affirm.   The court properly concluded that the FFA does not preempt plaintiff's common-law causes of action for negligence, strict liability and breach of implied warranties (see, Davis v. New York City Hous. Auth., 246 A.D.2d 575, 668 N.Y.S.2d 391;  Perez v. Mini-Max Stores, 231 A.D.2d 162, 661 N.Y.S.2d 659;  Wilson v. Bradlees of New England, 96 F.3d 552, cert. denied sub nom. Union Underwear Co. v. Wilson, 519 U.S. 1149, 117 S.Ct. 1083, 137 L.Ed.2d 218).   The reliance by Sun and Grace on our decisions in Connors v. Town of Hamburg, 233 A.D.2d 916, 649 N.Y.S.2d 558, and Panarites v. Williams, 216 A.D.2d 874, 629 N.Y.S.2d 359, is misplaced because the preemption provision involved in those cases (see, National Traffic and Motor Vehicle Safety Act, 15 U.S.C. § 1392) is significantly different from the one involved here (see, FFA, 15 U.S.C. § 1203[a] ).   Further, we reject Sun's contention that the doctrine of implied preemption applies (see, Guice v. Schwab & Co., 89 N.Y.2d 31, 39, 651 N.Y.S.2d 352, 674 N.E.2d 282, cert. denied 520 U.S. 1118, 117 S.Ct. 1250, 137 L.Ed.2d 331).

 We further conclude that the court properly found issues of fact concerning proximate cause and whether the shirts should be classified as “children's sleepwear” (see, 16 CFR part 1615).

Order unanimously affirmed without costs.

MEMORANDUM: