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Decided on October 13, 2006
Supreme Court, Queens County

29177/03

Plaintiff Attorney:
William P. Kelly, Esq.
McCarthy & Kelly, LLP
52 Duane Street
New York, New York 10013
Attorney for Defendant:

Neil L. Sambursky, Esq. Miranda & Sokoloff, Esq. 240 Mineola, Boulevard Mineola, New York 11501 Attorney for Defendant Safeguard America, LLC: John A. Beyrer, Esq. Mulholland, Minion & Roe, Esqs. 372 Hillside Avenue Williston Park, New York 11596 Attorney for Defendant Scott Technologies: Arnold I. Katz, Esq. Calinoff & Katz, LLP 140 East 45 Street New Yor, New York 10017-3144 Attorney for Defendant City of New York Timothy J. Staines, Esq. Corporation Counsel 100 Church Street New York, New York 10007 Phyllis Orlikoff Flug, J.
Defendant Morning Pride Manufacturing, LLC has moved for summary judgment dismissing

the complaint and all of the cross claims against it.
On November 7, 2002, plaintiff Steven Halliday, a Lieutenant of the New York City Fire Department ("FDNY") assigned to Ladder 165 in Queens, New York, responded to a fire located at 119-71 178th Place, St. Albans, New York ("the subject premises"). Although he observed a "free burning cellar fire," the plaintiff, accompanied by a forcible entry team, crawled into the first floor through the front door for the purpose of conducting a search. Approximately six minutes after he entered the building, the plaintiff, noticing a sudden increase in temperature and expecting a flashover, ordered his team to get out. However, before he and his team could escape, a flashover occurred, and "the whole first floor lit up." (A flashover occurs when a room and its contents reach their point of ignition at approximately the same time, and the temperature range of a flashover is between 1000 to 1800 degrees Fahrenheit or greater.) The plaintiff stood up and began running, but he hit an obstruction and fell backwards, losing his helmet, which he had chosen not to buckle. The plaintiff tried to run out again, but he fell at least once more, finally becoming pinned in the room by a fallen object. Lieutenant O'Donnell and his team poured water into the first floor, and eventually managed to remove the plaintiff alive. However, he sustained horrible injuries. The plaintiff does not know how much time elapsed from beginning of the flashover until his rescue. The report of an investigation conducted by FDNY concluded that other firefighters did not find the plaintiff in the building until 30 seconds after the flashover occurred and did not rescue him for two or three minutes.
Defendant Morning Pride manufactured the helmet, protective hood, bunker coat, bunker pants, and boots (collectively "the protective gear") worn by the plaintiff. The defendant manufactured the bunker pants in 1994 and bunker coat in 1998. While defendant Morning Pride alleges that the protective gear worn by the plaintiff had not been designed to protect him for the length of time that he was caught in the flashover, the plaintiff alleges, inter alia, that every item of protective gear that he was wearing was defectively manufactured and defectively designed.
Defendant Morning Pride first began supplying protective gear to FDNY in or about 1994. Defendant Morning Pride manufactures the protective gear according to specifications provided to it by FDNY. The specifications meet the requirements of the National Fire Prevention Association ("NFPA"), an organization which establishes standards for firefighting equipment. The FDNY/NFPA standards require that the bunker coat and bunker pants must have a Total Protective Performance ("TPP") rating of 35, meaning that the clothing must in a flashover provide 17.5 seconds of protection before a second degree burn occurs. Underwriters Laboratories ("UL") performed a TPP test on the bunker coat and bunker pants and found they would provide 20 to 21 seconds of flashover protection before a second degree burn could be anticipated, which exceeded the FDNY/ NFPA standards.
The defendant manufacturer physically attaches a Fire Equipment Manufacturers and [*2]Suppliers Association Official User Information Guide for Protective Garments for Structural Firefighting ("FEMSA guide") to the bunker pants and bunker coat in a manner such that these articles of clothing cannot be worn until the FEMSA guide is removed. The bunker coat and bunker pants also had warning labels which met standards set by the NFPA.
In or about 1998, defendant Morning Pride began to supply protective hoods to FDNY manufactured according to specifications provided by the latter. NFPA standards required the hood to have a TPP rating of twenty, meaning that it should provide flashover protection for ten seconds before a second degree burn could be expected. UL tests on the defendant's hood showed that it rated thirty-five. The manufacturer suppled a FEMSA Hood Guide attached to the hood and a FEMSA warning label.
In or about 1998, defendant Morning Pride began to supply helmets to FDNY according to technical specifications provided by the latter. Since helmets are three to ten times more insulated than other gear, no NFPA TPP standard had to be met. Nevertheless, the helmet worn by the plaintiff complied with NFPA 1971. The defendant manufacturer attached a FEMSA Helmet Guide to the helmet in a manner such that it could not be worn without removing it.
The FDNY approved and adopted defendant Morning Pride's specifications for the boots sold to it. Those boots passed a Radiant Protective Performance ("RPP") test which simulates a flashover condition. The boots also met NFPA 1971 standards. The manufacturer attached a FEMSA guide to the boots in a manner requiring its removal before the boots could be worn.
The plaintiff admits that he did not properly wear his bunker coat and bunker pants on the day of the accident. He did not wear suspenders, necessary to prevent a gap between the coat and pants, in violation of FDNY regulations. He also did not have his bunker coat collar turned up, permitting another gap in protection. The plaintiff further admits that he wore his helmet without securing it with the chin strap (thus permitting the helmet to fall off during the flashover) contrary to the instructions of the FEMSA Helmet Guide. The plaintiff also did not wear the protective hood over his head.
Scientific measurements by Steven Spivak, the defendant's expert, led him to conclude that the plaintiff had remained in the subject premises under flashover conditions for thirty seconds or more. He concludes that "Lt. Halliday was exposed to heat in excess of the time and heat intensity specifications for the Morning Pride gear as specified by the FDNY and NFPA 1971."
A plaintiff injured by a defective product may seek to recover damages from the manufacturer pursuant to as many as four theories of liability: express contract, implied contract, negligence, or strict products liability. (See, Voss v Black & Decker Mfg. Co., 59 NY2d 102.) A product may be defective when it contains a manufacturing flaw, is improperly designed, or is not accompanied by adequate warnings for the use of the product. (See, Liriano v Hobart Corp., 92 NY2d 232.) Plaintiff Halliday contends that every item of protective gear supplied by defendant Morning Pride was improperly manufactured, improperly designed, and not accompanied by adequate warnings.
"[T]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact ***." (Alvarez v Prospect Hospital, 68 NY2d 320, 324.) Defendant Morning Pride successfully carried this burden. In regard to defective manufacture, harm must have arisen from a product's failure to perform in an intended manner because of some defect in the [*3]fabrication process. (See, Denny v Ford Motor Co., 87 NY2d 248, 257 n. 3.) The manufacturer must have produced a product which did not conform to specifications. (See, McArdle v Navistar Intern. Corp, 293 AD2d 931; Searle v Suburban Propane Div. of Quantum Chem. Corp ., 263 AD2d 335.) In the case at bar, UL tested the protective gear worn by the plaintiff and found that it conformed to specifications. In regard to defective design, FDNY provided the specifications for the bunker coat, bunker pants, suspenders, hood, and helmet worn by the plaintiff, and FDNY adopted the manufacturer's specifications for his boots. "When a product is manufactured in accordance with plans and specifications provided by the purchaser, the manufacturer is not liable for an injury caused by an alleged design defect in the product, unless the specifications are so patently defective that a manufacturer of ordinary prudence would be placed on notice that the product is dangerous and likely to cause injury ***." (Houlihan v Morrison Knudsen Corp., 2 AD3d 493, 494; see, Santana v Seagrave Fire Apparatus Corp., 305 AD2d 395, 398; Beckles v General Elec. Corp., 248 AD2d 575; Lonigro v TDC Electronics, Inc. , 215 AD2d 534.) The specifications provided by or adopted by FDNY were not "patently defective." Indeed, the protective gear complied with NFPA 1971, and, according to the defendant's expert, were state of the art when supplied. Insofar as failure to warn is concerned, the duty of a product manufacturer to provide instructions or warnings on the proper and safe use of the product is well established. (See, e.g., Oliver v NAMCO Controls, 161 AD2d 1188; Cooley v Carter-Wallace Inc., 102 AD2d 642.) A plaintiff may recover in strict products liability or negligence for a manufacturer's failure to adequately warn of the risks and dangers associated with the use of its product. (See, Rastelli v Goodyear Tire & Rubber Co., 79 NY2d 289; Polimeni v Minolta Corp., 227 AD2d 64; Bukowski v CooperVision Inc. , 185 AD2d 31.) "Liability may be premised upon the complete absence of warnings as to a particular hazard **** or upon the inclusion of warnings which are insufficient ***." (Johnson v Johnson Chemical Co., Inc., 183 AD2d 64, 69.) In the case at bar, the protective gear supplied by defendant Morning Pride has warnings attached to them and FEMSA guides that had to be removed so that the article could be worn.
The burden on this motion shifted to the plaintiff to produce evidence sufficient to show that there is an issue of fact which must be tried. (See, Alvarez v Prospect Hospital, supra; West v City of Troy, 231 AD2d 825; Lonigro v TDC Electronics, Inc. , supra.) The plaintiff failed to carry this burden. First, contrary to the plaintiff's contention, the circumstantial evidence in this case does not show that there is an issue of fact concerning whether the protective gear supplied by defendant Morning Pride was defectively manufactured. (See, Codling v Paglia, 32 NY2d 330.) The plaintiff's expert did not find any specific defect in the items that he examined, and the plaintiff remained in a flashover condition beyond the time for which his protective gear was designed to provide protection. The investigation conducted by Safety Chief Melia found that the plaintiff could have been exposed to flashover temperatures for up to one minute. Moreover, the plaintiff failed to properly wear some of his protective gear, and, indeed, his unbuckled helmet fell off of his head. Second, in regard to defective design, the specifications provided by FDNY were not so patently defective that the manufacturer was put on notice that the protective gear was dangerous and likely to cause injury. (See, Houlihan v Morrison Knudsen Corp., supra; Santana v Seagrave Fire Apparatus Corp., supra.) The specifications were consistent with industry standards. Although industry standards may have been subjected to criticism by technical experts, such a circumstance is insufficient to create a genuine issue of fact concerning whether the protective gear was obviously [*4]inadequate and dangerous. Third, although FDNY may have taken industry standards and product capabilities into account in developing its specifications, such factors are not sufficient to defeat the contract specifications defense. The plaintiff did not successfully distinguish his case from Houlihan v Morrison Knudsen Corp. (supra) and Santana v Seagrave Fire Apparatus Corp. (supra). Fourth, the plaintiff did not create a genuine issue of fact concerning whether items of protective gear were defectively designed on the theory that defendant Morning Pride manufactured those items only in accordance with NFPA 1971 guidelines without taking into account certain available technical studies. Although subject to some scientific criticism, the plaintiff did not successfully show that compliance with NFPA 1971 requirements would result in the manufacture of a product that was not reasonably safe. (See, Voss v Black & Decker Mfg. Co., 59 NY2d 102; McArdle v Navistar Intern. Corp., 293 AD2d 931.) Fifth, the plaintiff did not create a genuine issue of fact regarding the element of alternative design. The plaintiff was "under an obligation to present evidence that the product, as designed, was not reasonably safe because there was a substantial likelihood of harm and it was feasible to design the product in a safer manner." (Voss v Black & Decker Mfg. Co., supra, 108; see, Cleary v Reliance Fuel Oil Associates, Inc., 17 AD3d 503; Wesp v Carl Zeiss, Inc. , 11 AD3d 965; Gonzalez v Delta Intern. Machinery Corp., 307 AD2d 1020; Felix v Akzo Nobel Coatings Inc., 262 AD2d 447.) Sixth, the plaintiff did not create a genuine issue of fact regarding the duty to warn through the submission of an affidavit from an expert which purports to show that the TPP test does not adequately duplicate the hazzards of a real fire, and, therefore, the labeling misrepresents the protection afforded by the protective gear. The warning materials supplied by the manufacturer adequately notified the firefighter in general terms of the risks of firefighting and the limitations of the protective gear. In sum, despite the volume of papers submitted by the plaintiff in opposition to the instant motion, summary judgment in favor of defendant Morning Pride is warranted.
Accordingly, the motion is granted.
Short form order signed herewith.

J.S.C.

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