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ONLY FAILURE TO WARN CAUSES OF ACTION PREEMPTED BY FEDERAL LAW IN THIS PESTICIDE-INJURY LAWSUIT.

The Fourth Department determined only the failure to warn causes of action in this lawsuit against a pesticide manufacturer were preempted by federal law. Supreme Court should not have dismissed the negligence, defective design/manufacture and breach of warranty causes of action. The Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) preempted only those causes of action that could result in state labelling requirements:

The preemption provision of FIFRA provides that, “[i]n general[,] . . . a State may regulate the sale or use of any federally registered pesticide or device in the State, but only if and to the extent the regulation does not permit any sale or use prohibited by this subchapter” (7 USC § 136v [a]). On the other hand, FIFRA provides that, in the interest of “[u]niformity[,] . . . [s]uch State shall not impose or continue in effect any requirements for labeling or packaging in addition to or different from those required under this subchapter” … . * * *

… [W]e conclude that the court erred in dismissing the third, fifth, and sixth causes of action of plaintiff’s amended complaint, as well as those parts of the fourth cause of action that do not allege a failure to warn. Plaintiff’s causes of action and claims alleging defendant’s breach of warranty, ordinary negligence, and defective design and manufacture of its product, i.e., theories unrelated to labeling or packaging, are not preempted by FIFRA … . Esposito v Contec, Inc., 2017 NY Slip Op 00842, 4th Dept 2-3-17

 

PRODUCTS LIABILITY (ONLY FAILURE TO WARN CAUSES OF ACTION PREEMPTED BY FEDERAL LAW IN THIS PESTICIDE-INJURY LAWSUIT)/TOXIC TORTS (ONLY FAILURE TO WARN CAUSES OF ACTION PREEMPTED BY FEDERAL LAW IN THIS PESTICIDE-INJURY LAWSUIT)/NEGLIGENCE (ONLY FAILURE TO WARN CAUSES OF ACTION PREEMPTED BY FEDERAL LAW IN THIS PESTICIDE-INJURY LAWSUIT)/PREEMPTION (ONLY FAILURE TO WARN CAUSES OF ACTION PREEMPTED BY FEDERAL LAW IN THIS PESTICIDE-INJURY LAWSUIT)/FEDERAL INSECTICIDE, FUNGICIDE, AND RODENTICIDE ACT (FIFRA) (ONLY FAILURE TO WARN CAUSES OF ACTION PREEMPTED BY FEDERAL LAW IN THIS PESTICIDE-INJURY LAWSUIT)/PESTICIDES (ONLY FAILURE TO WARN CAUSES OF ACTION PREEMPTED BY FEDERAL LAW IN THIS PESTICIDE-INJURY LAWSUIT)/TOXIC TORTS (ONLY FAILURE TO WARN CAUSES OF ACTION PREEMPTED BY FEDERAL LAW IN THIS PESTICIDE-INJURY LAWSUIT)

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SNOW REMOVAL CONTRACTOR DID NOT OWE A DUTY TO PLAINTIFF IN THIS SLIP AND FALL... PETITIONER DID NOT COME FORWARD WITH SUFFICIENT EVIDENCE TO OVERCOME THE PRESUMPTION...