This case is not published in a printed volume and its disposition appears in a table in the reporter.
Plaintiffs Segundo and Daisy Orellana were represented by Simonson, Hess Leibowitz, PC
Defendant Boro-Wide Recycling and Antoinette Christina were represented by Weiner, Millo Morgan, LLC
Defendant Assured Packaging was represented by Cozen O'Connor
Third-Party Defendant New Style Recycling Corp. was represented by Decicco, Gibbons McNamara, PC
Defendant Central Transport was represented by Ahmuty, Demers McManus, Esqs.
Herbert Kramer, J.
Upon the foregoing papers in this action by plaintiffs Segundo Orellana and Daisy Orellana (collectively, plaintiffs) for negligence, strict products liability, and breach of implied and express warranties, defendant Assured Packaging, Inc. (Assured) moves for summary judgment dismissing all claims and cross claims as against it, and defendant Demert Brands, Inc. (Demert) cross- moves for summary judgment dismissing all claims and cross claims as against it. Third-party defendant New Style Recycling Corp. (New Style) moves for summary judgment and an order, pursuant to CPLR 3126, dismissing the third-party complaint of defendant/ third-party plaintiff C C Eastern, Inc. i/s/h/a Central Transport, Inc. (CTI) and any and all claims as against it.
Assured was the manufacturer of Demert Nail Enamel Dryer (NED), a product sprayed on nails to dry nail polish. Assured manufactured the NED at its facility located in Ontario, Canada. In 2001, Demert purchased the rights to market the NED from a company named Creative and began its business relationship with Assured, who had previously manufactured the NED for Creative. Demert, thus, owned the trademark "Demert" and the sole ability to market the NED product. Assured shipped the NED from its plant, located in Ontario, Canada, pursuant to purchase orders placed by Demert to Demert's warehouse in Lutz, Florida.
The NED aerosal cans shipped by Assured to Demert were enclosed in cardboard boxes, 12 cans per box. The label on the cardboard boxes provided: "LEVEL 3 AEROSOL" and (on the other side) "CONSUMER COMMODITY ORM-D MADE IN CANADA." Level 3 Aerosol is a designation pursuant to National Fire Protection Association Standard 30B and it refers to the flammable nature of the aerosol. This category is commonly used within the shipping and storage industry and is reserved for the most flammable aerosols. ORM-D stands for "Other Regulated Materials." It is defined at 49 CFR 173.144 and is a designation derived from the Federal Hazardous Materials Transportation Act (49 U.S.C. §§ 5101 et seq.) (the HMTA). It means that the product is packaged in a manner suitable for consumer consumption. Assured placed the following warning on the NED aerosol cans:
"WARNING: Flammable. DO NOT USE NEAR FIRE OR FLAME,
OR WHILE SMOKING. Avoiding spraying in eye or toward face.
Contents under pressure. Do not puncture or incinerate. Do not store at temperatures above 120 F. Use only as directed. Intentional misuse by deliberately concentrating and inhaling contents can be harmful or fatal.
KEEP OUT OF REACH OF CHILDREN."
Accompanying each shipment of the NED aerosol cans from Assured to Demert was a Material Safety Data Street, which contained information regarding the hazardous ingredients contained in the NED aerosol cans. It listed, as the propellants, isoprane and butane, and set forth the explosion hazards posed by the NED aerosol cans and that they were "sensitive to shock."
CTI is a trucking company and a licensed common carrier, which, pursuant to an agreement with Demert, shipped the NED aerosol cans from Demert's Florida warehouse to various CTI terminals across the country for subsequent local delivery. Boxes of the NED aerosol cans were shipped to the CTI terminal located at 271 Norman Avenue, in Brooklyn, New York (the CTI terminal) for intended delivery to purchasers in the New York City metropolitan area. The manager for the CTI terminal from December 2002 until September 2003, was Michael Stanczak (Stanczak). Beginning in December 2002, Stanczak observed approximately 60 boxes containing NED aerosol cans on the dock against the back far wall of the CTI terminal and some loose cans on the dock. Many of the loose cans were damaged and Stanczak began discarding these loose NED aerosol cans that were strewn about the ground in December 2002. After subsequent unsuccessful attempts to locate the intended purchaser of the NED aerosol cans, Stanczak, in the first or second week of April 2003, began discarding entire boxes of the NED. On May 4, 2003, Stanczak threw out numerous full boxes of the NED. According to Stanczak, although he observed the ORM-D marking on the boxes containing the NED aerosol cans, he did not read any writing on the NED cans, and while he was aware that he was discarding aerosol cans, he did not believe the product was hazardous.
Stanczak discarded these boxes of the NED into a container located at the CTI terminal and owned by Boro-Wide. Boro-Wide is a company in the business of collecting and processing garbage. Boro-Wide would use garbage trucks and roll-off trucks to pick up the garbage thrown into the containers by CTI once a week.
During the early morning hours of May 5, 2003, Wellington Duran (Duran), a Boro-Wide employee, placed the contents of the container into a garbage truck. The garbage truck was equipped with an automatic compactor, which automatically compressed the contents placed into it, including the NED aerosol cans, while Duran was at the CTI terminal. Since this was Duran's last pick-up, he immediately drove to the waste transfer station (which processes waste), located at 49-10 Grant Avenue, in Brooklyn, New York, where he arrived at approximately 2:19 A.M., about 10 minutes later. This waste transfer station, used by Boro-Wide to dump the waste collected, was owned and operated by New Style. Shortly after arriving, Duran unloaded the contents of his garbage truck, including the compacted NED aerosol cans, via an overhead door, onto the floor of the waste transfer structure. According to a New York City Fire Department report, Duran informed an investigator that he heard a "hissing" sound as he dumped the contents of the garbage truck into the waste transfer building. The waste transfer building was not ventilated overnight.
At approximately 2:45 A.M., Orellana, an employee of New Style who operated machines to fill the trucks with garbage (and whose hours were from 3:00 A.M. to 1:30 P.M.), arrived for work and entered the waste transfer building. When Orellana turned on the light switch in the building, as was his usual routine, an explosion occurred and he sustained severe injuries, including burns. According to a final investigation of the New York City Fire Department and a report by the New York City Department of Environmental Protection, Division of Emergency Response Technical Assessment, the explosion was caused by the accumulation of butane and isopropane that had leaked from approximately 500 structurally compromised NED aerosol cans. These gas vapors were ignited when Orellano turned the light switch to the "on" position. A total of 685 cans, equaling about 57 cases (12 cans per case), were recovered from the site of the explosion.
Consequently, on April 20, 2004, Orellana and his wife, Daisy Orellana, filed this action against Boro-Wide, CTI, and Antoinette Cristina, who is the president and sole shareholder of New Style. On July 11, 2005, CTI filed a third-party action against New Style, Assured, and Demert seeking contribution and/or indemnification from them, and, on August 9, 2005, plaintiffs amended their complaint to add Assured and Demert as direct defendants.
Plaintiffs' complaint, with respect to Assured and Demert, alleges causes of action for negligence in offering a defective product with inadequate warning labels on the NED aerosol cans and shipping boxes; strict products liability for the defective condition of the product, and inadequate labeling on the cans and boxes; breach of express warranties and implied warranties of fitness for a particular purpose and merchantability; and loss of services on behalf of Daisy Orellana. Plaintiffs' complaint, as against Boro-Wide, CTI, and Antoinette Cristina, alleges claims of negligence and loss of services on behalf of Daisy Orellana.
CTI's third-party complaint alleges, as against Assured and Demert, causes of action for negligence and failing to provide a product safe for ordinary and intended use; failing to properly warn it regarding the foreseeable risks of the product, and negligent manufacture and design, with latent defects; strict products liability; and breaches of express warranties and implied warranties of fitness for a particular purpose and merchantability. CTI's third-party complaint alleges, as against New Style, that New Style was negligent in failing to provide Orellana with a safe place to work, in failing to supervise Orellana in the performance of his work, and in the operation and maintenance of the waste transfer facility. The defendants and third-party defendants have asserted cross claims as against each other for contribution and/or indemnification.
Initially, the court notes that there is no opposition to Assured's motion and Demert's cross motion insofar as they seek summary judgment dismissing the claims sounding in breach of warranties, negligent manufacture, and strict products liability for defective manufacture. As such, dismissal of these claims is warranted ( see CPLR 3212 [b]; Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324 ). Assured's motion and Demert's cross motion insofar as they seek the summary judgment dismissing claims based upon a failure to warn and inadequate labeling are opposed by plaintiffs, CTI, and Boro-Wide.
Assured and Demert assert that they cannot be held liable based upon failure to warn and inadequate labeling State law tort claims because the warnings on the boxes in which the NED aerosol cans were shipped complied with the HMTA (49 U.S.C. §§ 5101-5127) and the Department of Transportation (DOT) regulations codified under the HMTA. To support this assertion, Assured has submitted (and Demert also relies upon) the expert affidavit of Michael Fox, Ph.D (Dr. Fox), a physical chemist. Dr. Fox states that since the NED was a consumer commodity packaged in a manner suitable for consumer consumption, Assured was able to take advantage of an ORM-D classification, pursuant to 49 CFA 173.306 (h). ORM-D is defined at 49 CFR 173.144, and is derived from the HMTA. Dr. Fox explains that (as noted above) ORM-D means that the product is packaged in a manner suitable for consumer consumption and that 49 CFR 173.306 is the section of the HMTA which specifically governs aerosols. 49 CFR 173.306 (a) (3), which governs the labeling requirements of "Limited quantities of compressed gases," refers to 49 CFR 173.306 (h), which sets forth the requirements for classifying an aerosol as ORM-D. Dr. Fox asserts that the NED qualified for the ORM-D classification, and Assured was able to take advantage of this ORM-D exemption, pursuant to 49 CFR 173.306 (h), because it was a consumer commodity packaged in a manner suitable for consumer consumption. He notes that flammable aerosols classified as ORM-D do not have to be classified or marked as a flammable gas, Class 2.1 (see 49 CFR 173.306 [h]). Dr. Fox points out that 49 CFR 172.316 provides that ...