*1 Cross appeals from the resettled order of the Supreme Court, New York County (Debra A. James, J.), entered January 10, 2017, which, insofar as appealed from as limited by the briefs, denied defendant Bed Bath & Beyond’s motion for summary judgment dismissing the manufacturing defect, breach of express warranty, failure to warn, and punitive damages claims, and denied plaintiffs’ motion for partial summary judgment on the defective design and failure to warn claims, and from the order of the same court and Justice, entered December 23, 2016, which denied defendant Bed Bath & Beyond’s motion for summary judgment, and plaintiff’s cross motion for summary judgment.*2
This action arises from injuries allegedly sustained by plaintiffs when a fire pot and fuel gel purchased from defendant suddenly combusted and exploded. The product at issue is a combination of a ceramic pot, called the “FireBurners” Pot, with a stainless steel fuel reservoir at its center and a bottle of gelled fuel for use with the fire pot called “FireGel.” Plaintiffs allege that their injuries occurred when the fire pot was refueled with the fuel gel and an explosion occurred. A red sticker affixed to the fire pot itself that must be removed in order to use the product states: “WARNING…DON’T REFILL UNTIL FLAME IS OUT & CUP IS COOL.” Additionally, a pamphlet entitled “CARE AND USE INSTRUCTIONS,” which comes with the product, states in the “WARNINGS” section: “Do not add fuel when lit and never pour gel on an open fire or hot surface.” The label on the back of the fuel gel bottle instructs: “NEVER add fuel to a burning fire,” and under the word “WARNING,” which is in bold, it states: “DANGER, FLAMMABLE LIQUID & VAPOR.” The deposition testimony is inconsistent as to whether the explosion occurred after the fire pot was refueled with fuel gel while the fire pot was still hot or lit.One of plaintiffs’ experts, Stuart M. Statler, opined that the product was not reasonably safe for its intended use and was defectively designed for a number of reasons, including that when the product is being used and the fire pot is refueled with the fuel gel, the fuel gel can combust and explode, destroying property and injuring persons in its vicinity, that when the fuel gel inside the stainless steel cup burns down, it can appear to the user that the flame is extinguished and that the gel has been exhausted when in fact remnants of fuel gel remain in the steel cup and a flame that is difficult to visually discern continues to burn and that the viscosity of the fuel gel renders it highly sticky and especially adherent to things with which it comes in contact, including skin and clothing, which increases the difficulty of extinguishing the flaming gel.We first turn to plaintiffs’ motion for partial summary judgment on the defective design claim. “In order to establish a prima facie case in strict products liability for design defects, the plaintiff
