Defendants, as limited by their briefs, appeal from that portion of an order of the Civil Court of the City of New York, New York County (Andrea Masley, J.), entered July 19, 2011, which denied their combined motion for summary judgment dismissing the second, fourth and fifth causes of action in plaintiff's amended complaint.

Per Curiam.

Order (Andrea Masley, J.), entered July 19, 2011, modified to dismiss plaintiff's second, fourth and fifth causes of action; as modified, order affirmed, without costs.

Plaintiff commenced this action seeking to recover damages for personal injuries allegedly sustained when, upon applying "Care Free Curl Instant Moisturizer" to her hair - a moisturizer she used every day, without incident, for some 35 years - her hair caught fire while she attempted to light a cigarette. It is undisputed on this record that the warning labels on the bottles of moisturizer most recently purchased by plaintiff, printed in red in capital letters, cautioned users to "KEEP HAIR AWAY FROM OPEN FLAME ... OR LIT TOBACCO PRODUCTS." Plaintiff testified at her deposition that she "never noticed" if the product contained a warning label and that "she never paid attention to it."

Defendants' motion for summary judgment dismissing plaintiff's failure to warn claim should have been granted. Plaintiff's admission that she never read the warning labels severs the causal connection between the alleged failure to warn and the accident (see Reis v Volvo Cars of N. Am., Inc., 73 AD3d 420, 423 [2010]). Plaintiff's cause of action for failure to recall also should have been dismissed because no such cause of action exists under New York Law (see Adams v Genie Indus., Inc., 14 NY3d 535, 544-545 [2010]). As to its cause of action for breach of warranty, plaintiff failed to rebut defendant's prima facie showing of entitlement to judgment dismissing such claim (see Nationwide Ins. Co. v New York Lighter Co., Inc., 68 AD3d 950, 951-952 [2009]). Indeed, plaintiff's opposition papers did not address the warranty claim or specifically oppose the branch of defendant's motion relating thereto.

Plaintiff's opposing submission did, however, sufficiently set forth a design defect cause of action, through evidence tending to establish, among other things, that the product presented [*2]an unreasonable risk of harm to the user (see Yun Tung Chow v Reckitt & Colman, Inc., 17 NY3d 29 [2011]). Although the amended complaint does not clearly spell out a defective design claim, a plaintiff may oppose a motion for summary judgment by relying on an unpleaded cause of action (see Alvord & Swift v Muller Constr. Co., 46 NY2d 276, 281 [1978]). In these circumstances, we exercise our discretion and deem the complaint amended to assert a cause of action alleging design defect (see Ramos v Jake Realty Co., 21 AD3d 744 [2005]). Our disposition is without prejudice to defendants' right, if so advised, to renew their motion addressed to that claim.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: July 16, 2012