Marcus Mann, an Infant, by His Mother and Natural Guardian, Victoria Maddox, et al., Respondents, v. H.W. Andersen Products, Inc., Appellant, et al., Defendant

Marcus Mann, an Infant, by His Mother and Natural Guardian, Victoria Maddox, et al., Respondents, v H.W. Andersen Products, Inc., Appellant, et al., Defendant. [647 NYS2d 101] [MAJORITY] In an action to recover damages for personal injuries, etc., the defendant H.W. Andersen Products, Inc. appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Collins, J.), dated August 22, 1995, as denied its cross motion for summary judgment dismissing the complaint insofar as it is asserted against it. Ordered that the order is modified by deleting the provision thereof denying that branch of the cross motion which was for summary judgment on the claims based on failure to label and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements. The Supreme Court erred in denying that branch of the cross motion of H.W. Andersen which was to dismiss those causes of action based on failure to label insofar as asserted against it, as those claims are preempted pursuant to the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) (7 USC § 136v [b]; see, Warner v American Flouride Corp., 204 AD2d 1). We decline to pass on the remaining theories of liability set forth in the complaint as to H.W. Andersen Products as they were not raised by the parties in the Supreme Court. Rosenblatt, J. P., Santucci, Joy and Hart, JJ., concur.