Opinion
May 6, 1996
Appeal from the Supreme Court, Rockland County (Weiner, J.).
Ordered that the order is affirmed, without costs or disbursements.
All but one of the plaintiffs' causes of action, regardless of how they were pleaded, are premised upon the defendants' alleged failure to adequately label certain products and warn of the potential safety hazards associated with Chromated Copper Arsenate, and are therefore preempted by the Federal Insecticide, Fungicide, and Rodenticide Act (hereinafter FIFRA) ( 7 U.S.C. § 136 et seq.; see also, Warner v. American Flouride Corp., 204 A.D.2d 1).
Although the FIFRA does not preempt the cause of action based on negligent testing of the pesticide or of the lumber in which the pesticide was impregnated ( see, Warner v. American Flouride Corp., supra; Worm v. American Cyanamid Co., 5 F.3d 744, 749; Bingham v. Terminix Intl. Co., 850 F. Supp. 516; Burke v. Dow Chem. Co., 797 F. Supp. 1128, 1148; Wallace v. Parks Corp., 212 A.D.2d 132), such an action cannot be asserted against the defendant Beckerle Lumber Supply Co., Inc., which was the retail distributor of the wood ( see, Alfieri v. Cabot Corp., 17 A.D.2d 455, affd 13 N.Y.2d 1027). With respect to the remaining defendants, the plaintiffs failed to submit any evidentiary proof in support of this cause of action. Under these circumstances, the Supreme Court properly granted the defendants' respective motions for summary judgment dismissing the complaint.
The plaintiffs' remaining contentions are without merit. Mangano, P.J., Miller, Ritter and Pizzuto, JJ., concur.