Opinion
No. 190114/2020 Motion Seq. No. 002
03-01-2023
ROGER A WOLF, Plaintiff, v. A.O. SMITH WATER PRODUCTS CO, AMCHEM PRODUCTS, INC., N/K/A RHONE POULENC AG COMPANY, N/K/A BAYER CROPSCIENCE INC, AMERICAN BILTRITE INC..BECKETT CORPORATION, BIRD INCORPORATED, BURNHAM, LLC, INDIVIDUALLY, AND AS SUCCESSOR TO BURNHAM CORPORATION, BW/IP, INC. AND ITS WHOLLY OWNED SUBSIDIARIES, CBS CORPORATION, F/K/A VIACOM INC, SUCCESSOR BY MERGER TO CBS CORPORATION, F/K/A WESTINGHOUSE ELECTRIC CORPORATION, CLEAVER BROOKS COMPANY, INC, COLUMBIA BOILER COMPANY OF POTTSTOWN, CONSOLIDATED EDISON COMPANY OF NEW YORK, INC, COURTER & COMPANY INCORPORATED, CRANE CO, CROWN BOILER CO., F/K/A CROWN INDUSTRIES, INC, DAP, INC, DOMCO PRODUCTS TEXAS, INC, ECR INTERNATIONAL, CORP., F/K/A DUNKIRK BOILERS AND UTICA BOILER COMPANY, FOSTER WHEELER, LLC, GENERAL ELECTRIC COMPANY, GOULDS PUMPS LLC,INTERNATIONAL PAPER COMPANY, INDIVIDUALLY AND AS SUCCESSOR TO CHAMPION INTERNATIONAL CORPORATION, AS SUCCESSOR TO UNITED STATES PLYWOOD CORPORATION, ITT LLC, INDIVIDUALLY AND AS SUCCESSOR TO BELL & GOSSETT AND AS SUCCESSOR TO KENNEDY VALVE MANUFACTURING CO., INC, KARNAK CORPORATION, KEELER-DORR-OLIVER BOILER COMPANY, KOHLER CO, O'CONNOR CONSTRUCTORS, INC., F/K/A THOMAS O'CONNOR & CONNOR & CO., INC, PECORA CORPORATION, PFIZER, INC. (PFIZER), TACO, INC, TISHMAN LIQUIDATING CORP, TREADWELL CORPORATION, U.S. RUBBER COMPANY (UNIROYAL), UNION CARBIDE CORPORATION, UTICA BOILERS, INC., INDIVIDUALLY AND AS SUCCESSOR TO UTICA RADIATOR CORPORATION, WARREN PUMPS, LLC,WAYNE COMBUSTION SYSTEMS, F/K/A WAYNE HOME EQUIPMENT WEYERHAEUSER COMPANY, ZURN INDUSTRIES LLC INDIVIDUALLY AND SUCCESSOR TO ERIE CITY IRON WORKS A/K/A ERIE CITY BOILERS, R.W. BECKETT CORPORATION, WEIL-MCLAIN, A DIVISION OF THE MARLEY-WYLAIN COMPANY, A WHOLLY OWNED SUBSIDIARY OF THE MARLEY COMPANY, LLC, Defendant.
Unpublished Opinion
MOTION DATE 11/29/2022.
PRESENT: HON. ADAM SILVERA, Justice
DECISION + ORDER ON MOTION
The following e-filed documents, listed by NYSCEF document number (Motion 002) 167, 168, 169, 170, 171, 172, 173, 174, 175, 176, 177, 178, 179, 180, 181, 182, 183, 184, 185, 186, 187, 188, 189, 190, 191, 192, 194, 195, 196, 197, 198, 199, 200,201,202, 203, 204, 205, 206,207, 208,209, 210, 211,212,213, 214, 215, 216, 217, 218, 219, 220, 221, 222, 223, 224, 225, 226, 227, 228, 229, 230, 231, 232 were read on this motion to/for PARTIAL SUMMARY JUDGMENT.
Upon the foregoing documents, it is ordered that defendant Burnham LLC's motion for partial summary judgment to dismiss plaintiffs punitive damages claims is hereby denied for the reasons set forth below.
Here, defendant Burnham moves for summary judgment arguing that plaintiff has failed to establish that moving defendants' conduct rises to the level of egregious and morally culpable conduct necessary for an award of punitive damages. According to defendant Burnham, it has never manufactured asbestos containing component parts for its boilers. In support of its motion, defendant Burnham relies upon a study conducted by William E. Longo, Ph.D in 2007 (hereinafter referred to as the "Longo study"), arguing that plaintiffs exposure to asbestos was below the Occupational Safety and Health Act's permissible exposure limit. As such, defendant Burnham contends that its failure to warn does not rise to reckless and wanton disregard to support a claim for punitive damages. Plaintiff opposes the instant motion arguing that the Longo study is insufficient to meet defendant Burnham's initial burden on summary judgment. Moving defendant replies.
During his deposition, plaintiff testified that he worked on residential boilers throughout his career, and specifically identified working with 10 or 11 Burnham boilers which exposed him to asbestos which included using hammers, screwdrivers, putty knives, etc. to remove cracked insulation. Plaintiff further testified that he was exposed to asbestos through the asbestos rope and gaskets on Burnham boilers. Plaintiff specifically testified that he knew they were Burnham boilers as it was cast on the door or the body of the boiler itself.
The standards of summary judgment are well settled. Summary judgment is a drastic remedy and should only be granted if the moving party has sufficiently established that it is warranted as a matter of law. See Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324 (1986). "The 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 eliminate any material issues of fact from the case". Winegrad v New York University Medical Center, 64 N.Y.2d 851, 853 (1985). Despite the sufficiency of the opposing papers, the failure to make such a showing requires denial of the motion. Id. at 853. Additionally, summary judgment motions should be denied if the opposing party presents admissible evidence establishing that there is a genuine issue of fact remaining. See Zuckerman v City of New York, 49 N.Y.2d 557, 560 (1980). "In determining whether summary judgment is appropriate, the motion court should draw all reasonable inferences in favor of the nonmoving party and should not pass on issues of credibility." Garcia v J.C Duggan, Inc., 180 A.D.2d 579, 580 (1st Dep't 1992), citing Dauman Displays, Inc. v Masturzo, 168 A.D.2d 204 (1st Dep't 1990). The court's role is "issue-finding, rather than issue-determination". Sillman v Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 404 (1957) (internal quotations omitted). As such, summary judgment is rarely granted in negligence actions unless there is no conflict at all in the evidence. See Ugarriza v Schmieder, 46 N.Y.2d 471, 475-476 (1979).
In toxic tort cases, the New York Court of Appeals has adopted a gross negligence standard for the purposes of punitive damages, holding that punitive damages are warranted when "the actor has intentionally done an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow and has done so with conscious indifference to the outcome." Maltese v Westinghouse Elec. Corp., 89 N.Y.2d 955, 956-957 (1997)(internal quotations omitted). "The purpose of punitive damages is not to compensate the plaintiff but to punish the defendant for wanton and reckless, malicious acts and thereby to discourage the defendant and other people, companies from acting in a similar way in the future". Matter of 9Is' St. Crane Collapse Litig., 154 A.D.3d 139, 156 (1stDep't 2017)(internal parentheses omitted).
Plaintiff correctly argues that the single study conducted by Dr. Longo is insufficient to support partial summary judgment on the issue of punitive damages herein. In his deposition, Dr. Longo concedes that he never conducted any studies on a Burnham boiler. See Affirmation in Opposition to Burnham's Motion for Partial Summary Judgment, Exh. 4, Depo. Tr. of William E. Longo, Ph.D., dated December 16, 2015, p. 36, In. 10-12. In Dryer v Amchem Products Inc., 207 A.D.3d 408, 411 (1st Dep't 2022) the Appellate Division, First Department held that to succeed on a motion for summary judgment, the moving party must support the motion with a fact specific study. Here, the Longo study provides no relevant information regarding the specific products at issue herein, and the specific circumstances in which the instant plaintiff was exposed to asbestos through defendant Burnham's boilers. Thus, defendant Burnham has failed to proffer sufficient evidence to establish entitlement to summary judgment.
Moreover, the Court notes that where a plaintiff provides evidentiary facts tending to show that defendant's warnings were in any way deficient, the adequacy of such warnings are a factual question that should be resolved by a jury. See Eiser v Feldman, 123 A.D.2d 583, 584 (1986). The New York Court of Appeals has also held that "[a] products liability action founded on a failure to warn involves conduct of the defendant having attributes of negligence which the jury may find sufficiently wanton or reckless to sustain an award of punitive damages." Home Ins. Co. v Am. Home Products Corp., 75 N.Y.2d 196, 204 (1990)(internal citations omitted). Here, plaintiff has proffered evidence that demonstrates defendant Burnham failed to warn plaintiff of the hazards of asbestos. During direct testimony of the corporate representative of defendant Burnham, Mr. Sweigart, was asked whether it was correct that "Burnham, never.. .put a warning regarding the hazards of asbestos on any of its boilers". Affirmation in Opposition, supra, Exh. 5, excerpts from the Tr. of Mr. Sweigart from the Assenzio trial group, dated June 19, 2013, p. 2778, In. 14-16. Mr. Sweigart answered “[t]hat's correct." Id. at In. 20. As such, defendant Burnham has failed to demonstrate their prima facie burden that punitive damages are not warranted herein. Thus, defendant Burnham's motion is denied.
Accordingly, it is
ORDERED that defendant Burnham's motion for partial summary judgment to dismiss plaintiffs claim for punitive damages is denied in its entirety; and it is further
ORDERED that within 30 days of entry, plaintiff shall serve a copy of this Decision/Order upon defendants with notice of entry.
This constitutes the Decision/Order of the Court.