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Mercogliano v. Sears, Roebuck and Co.

Appellate Division of the Supreme Court of New York, Second Department
Mar 17, 2003
303 A.D.2d 566 (N.Y. App. Div. 2003)

Opinion

2002-01031

Argued December 12, 2002.

March 17, 2003.

In an action to recover damages for personal injuries, etc., the defendants appeal from an order of the Supreme Court, Suffolk County (Emerson, J.), dated January 8, 2002, which denied their motion for summary judgment dismissing the complaint.

Lynch Rowin, LLP, New York, N.Y. (Thomas P. Lynch and Karen L. Kirshenbaum of counsel), for appellants.

John J. Guadagno, P.C., East Islip, N.Y. (Joseph R. D'Addario of counsel), for respondents.

Before: NANCY E. SMITH, J.P., GLORIA GOLDSTEIN, WILLIAM D. FRIEDMANN, LEO F. McGINITY, JJ.


DECISION ORDER

ORDERED that the order is affirmed, with costs.

The injured plaintiff, an infant, was severely burned when the jacket she was wearing caught fire while she was playing near a barbecue grill in her back yard. The defendants, the manufacturer and retailer of the jacket, jointly moved for summary judgment dismissing the complaint. The Supreme Court denied the motion. We affirm.

Compliance with the Federal Flammable Fabrics Act ( 15 U.S.C. § 1191 et seq.) and its accompanying regulations (16 C.F.R. part 1610.1 et seq.) is merely some evidence of due care and does not preclude a finding of negligence (see Feiner v. Calvin Klein, Ltd., 157 A.D.2d 501, 502; Sherman v. Lowenstein Sons, 28 A.D.2d 922; see also Lopez v. LJN Toys, 146 A.D.2d 168, affd 75 N.Y.2d 850). The standards mandated therein, which are industry-derived, establish a minimum resistance-to-flammability level (see Perez v. Mini-Max Stores, 231 A.D.2d 162, 164-165) and clearly were promulgated to determine flammability levels before products are passed to consumers (see 15 U.S.C. § 1192; S Rep No. 83-400, 1953 U.S. Code Cong. Admin. News, at 1722), not as a shield to tort liability based upon State law. Therefore, the defendants failed to make a prima facie showing of entitlement to judgment as a matter of law based upon the conclusion of their expert that the jacket complied with and exceeded the standards prescribed therein.

Under these circumstances, we need not consider whether the plaintiffs' papers in opposition to the motion were sufficient to raise a triable issue of fact (see Correa v. Salke, 294 A.D.2d 461; Urbanski v. Mulieri, 287 A.D.2d 710, 711).

SMITH, J.P., GOLDSTEIN, FRIEDMANN and McGINITY, JJ., concur.


Summaries of

Mercogliano v. Sears, Roebuck and Co.

Appellate Division of the Supreme Court of New York, Second Department
Mar 17, 2003
303 A.D.2d 566 (N.Y. App. Div. 2003)
Case details for

Mercogliano v. Sears, Roebuck and Co.

Case Details

Full title:APRIL A. MERCOGLIANO, ETC., ET AL., respondents, v. SEARS, ROEBUCK AND…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Mar 17, 2003

Citations

303 A.D.2d 566 (N.Y. App. Div. 2003)
756 N.Y.S.2d 472

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