Opinion
Index No. 190148/2020 Motion Seq. No. 008
12-13-2022
BARBARA YOHE, Plaintiff, v. AMCHEM PRODUCTS, INC., N/K/A RHONE POULENC AG COMPANY, NIK/A BAYER CROPSCIENCE INC, GENERAL ELECTRIC COMPANY, PFIZER, INC. (PFIZER), U.S RUBBER COMPANY (UNIROYAL), UNION CARBIDE CORPORATION, AO. SMITH WATER PRODUCTS CO., AERCO INTERNATIONAL, INC., AMERICAN VALVE, INC., ARMSTRONG PUMPS, INC., ATLANTIC RICHFIELD COMPANY, INDIVIDUALLY AND AS SUCCESSOR TO WALWORTH VALVES, BARNES & JONES, INC., BLACKMAN PLUMBING SUPPLY COMPANY, INC., BMCE INC., F/K/A UNITED CENTRIFUGAL PUMP, BRADFORD WHITE CORPORATION, BURNHAM, LLC, INDIVIDUALLY, AND AS SUCCESSOR TO BURNHAM CORPORATION, CARRIER CORPORATION, CLEAVER BROOKS COMPANY, INC., COMPUDYNE CORPORATION, INDIVIDUALLY, AND AS SUCCESSOR TO YORK SHIPLEY, INC., CONBRACO INDUSTRIES, INC. INDIVIDUALLY AND D/B/A APOLLO VALVES, CRANE CO. INDIVIDUALLY AND AS SUCCESSOR TO PACIFIC VALVES, DUNHAM-BUSH, INC., INDIVIDUALLY, AND AS SUCCESSOR IN INTEREST TO IRON FIREMAN AND POWER COMPANY, EASCO BOILER CORP. INDIVIDUALLY, AND AS SUCCESSOR TO AL EASTMOND & SONS, INC. AND FEDERAL BOILERS, EASTMOND & SONS OF N.J. LLC,INDIVIDUALLY AND AS SUCCESSOR IN INTEREST TO EASCO BOILER CORP. AND AL EASTMOND & SONS, INC., AND FEDERAL BOILER, FMC CORPORATION, ON BEHALF OF ITS FORMER CHICAGO PUMP & NORTHERN PUMP BUSINESSES, GORDON-PIATT ENERGY GROUP, GOULDS PUMPS LLC, GRINNELL LLC, H.B. SMITH COMPANY, INCORPORATED, HALE PRODUCTS, INC., HARSCO CORPORATION, AS SUCCESSOR TO PATTERSON-KELLEY COMPANY, INC., INDIVIDUALLY AND D/B/A PATTERSON-KELLEY, HOFFMAN-NEW YORKER, INC., HUBBELL ELECTRIC HEATER COMPANY, INDUSTRIAL COMBUSTION, LLC, ITT INDUSTRIES, INC. INDIVIDUALLY AND AS SUCCESSOR-IN-INTEREST TO HOFFMAN SPECIAL TY, ITT LLC., INDIVIDUALLY AND AS SUCCESSOR TO BELL & GOSSETT AND AS SUCCESSOR TO KENNEDY VALVE MANUFACTURING CO., INC., JENKINS BROS., JOHN ZINK COMPANY, LLC INDIVIDUALLY AND AS SUCCESSOR IN INTEREST TO THE GORDON PIATT ENERGY GROUP, KAMCO SUPPLY CORP., KEELER-DORR-OLIVER BOILER COMPANY, LAARS HEATING SYSTEMS CO., LENNOX INDUSTRIES, INC., LOCHINVAR, LLC, MESTEK, INC. INDIVIDUALLY AND AS SUCCESSOR IN INTEREST TO H.B. SMITH, NEW YORKER BOILER COMPANY, INC., NIBCO, NYC PUMPS PM LLC, INDIVIDUALL Y AND AS SUCCESSOR IN INTEREST TO FEDERAL PUMP CORPORATION AND FEDERAL PUMP REPAIR COMPANY INC., NYC PUMPS PMF LLC, INDIVIDUALLY AND AS SUCCESSOR IN INTEREST TO FEDERAL PUMP CORPORATION AND FEDERAL PUMP REPAIR COMPANY, INC., NYC PUMPS REPAIR PM LLC INDIVIDUALLY AND AS SUCCESSOR IN INTERESTTO FEDERAL PUMP CORPORATION AND FEDERAL PUMP REPAIR COMPANY, INC., PB HEAT LLC, INDIVIDUALLY AND AS SUCCESSOR IN INTEREST TO PEERLESS INDUSTRIES, PEERLESS INDUSTRIES, INC., POWER FLAME INC., PUMPMAN HOLDINGS LLC, INDIVIDUALL Y AND AS SUCCESSOR IN INTEREST TO FEDERAL PUMP CORPORATION AND FEDERAL PUMP REPAIR COMPANY, INC., PUMPMAN INTERMEDIATE HOLDINGS, LLC, INDIVIDUALLY AND AS SUCCESSOR IN INTEREST TO FEDERAL PUMP CORPORATION AND FEDERAL PUMP REPAIR COMPANY, INC., R.W. BECKETT CORPORATION, RHEEM MANUFACTURING COMPANY, SID HARVEY SUPPLY CO., SLANT/FIN CORPORATION, SPENCE ENGINEERING COMPANY, INC. INDIVIDUALLY AND AS A DIVISION OF CIRCOR INTERNATIONAL INC., SPIRAX SARCO, INC. INDIVIDUALLY AND AS SUCCESSOR TO SARCO COMPANY, STATE INDUSTRIES LLC, TACO, INC., THE J.R. CLARKSON COMPANY LLC SUCCESSOR BY MERGER TO IMI CASH VALVE, INC. (FORMERLY KNOWN AS AW CASH VALVE MANUFACTURING CORPORATION), THE WALWORTH COMPANY F/LDA EMPRESAS LANZAGORTA, UTICA BOILERS, INC., INDIVIDUALLY AND AS SUCCESSOR TO UTICA RADIATOR CORPORATION, WEIL-MCLAIN, A DIVISION OF THE MARLEY-WYLAIN COMPANY, A WHOLLY OWNED SUBSIDIARY OF THE MARLEY COMPANY, LLC, XYLEM INC., INDIVIDUALLY AND AS SUCCESSOR IN INTEREST TO FLYGT PUMPS, ZY-TECH GLOBAL INDUSTRIES, INC., AMERICAN MANAGEMENT CORPORATION INDIVIDUALLY AND AS SUCCESSOR IN INTEREST TO THE PEERLESS HEATER COMPANY, PEERLESS HEATER COMPANY, PEERLESS INDUSTRIES, INC., ESTATE CONSULTANTS, INC., THE EASTERN FOUNDRY COMPANY, EAFCO, AND DOE COMPANY, ATLANTIC SHORES CORPORATION INDIVIDUALLY AND AS SUCCESSOR IN INTEREST TO BOYERTOWN PRODUCTS CO., INC., PEERLESS HEATER COMPANY, THE PEERLESS HEATER COMPANY, AMERICAN MANAGEMENT CORPORATION, PEERLESS INDUSTRIES, INC., ESTATE CONSULTANTS, INC., BOILER PRODUCTS CO., INC. INDIVIDUALLY AND AS SUCCESSOR IN INTEREST TO BOYERTOWN PRODUCTS CO., INC., PEERLESS HEATER COMPANY, AMERICAN MANAGEMENT CORPORATION, PEERLESS INDUSTRIES, INC., ESTATE CONSULTANTS, INC., ATLANTIC SHORES CORPORATION, BOYERTOWN FOUNDRY COMPANY INDIVIDUALLY AND AS SUCCESSOR IN INTEREST TO EAFCO, EASTERN FOUNDRY COMPANY, PEERLESS HEATER COMPANY, THE PEERLESS HEATER COMPANY, PEERLESS INDUSTRIES, INC., AND DOE COMPANY., EAFCO INC., INDIVIDUALL Y AND AS SUCCESSOR IN INTEREST TO THE EASTERN FOUNDRY COMPANY, THE PEERLESS HEATER COMPANY, PEERLESS HEATER COMPANY, AMERICAN MANAGEMENT COMPANY PEERLESS INDUSTRIES, ESTATE CONSULTANTS, INC. AND DOE COMPANY, JEFFREY ALEXANDER INDIVIDUALLY AND AS VICE PRESIDENT/DIRECTOR OF BOYERTOWN PRODUCTS A/KIA PEERLESS HEATER COMPANY, PB HEAT LLC, AND DOE COMPANY., MESTEK, INDIVIDUALLY AS SUCCESSOR IN INTEREST TO H.B. SMITH, EAFCO, EASTERN FOUNDRY COMPANY, PEERLESS HEATER COMPANY, THE PEERLESS HEATER COMPANY, PEERLESS INDUSTRIES, INC., AND DOE COMPANY., MICHAEL ALAN FISH, INDIVIDUALLY, AND AS SECRETARY OF PEERLESS INDUSTRIES, INC. AND DOE COMPANY., NORITZ USA CORPORATION, INDIVIDUALLY AND AS SUCCESSOR IN INTEREST TO PB HEAT LLC, BOYERTOWN PRODUCTS CO, INC., PEERLESS HEATER COMPANY, THE PEERLESS HEATER COMPANY, AMERICAN MANAGEMENT CORPORATION, PEERLESS INDUSTRIES, INC. ESTATE CONSUL TANT INC., PB HEAT, INDIVIDUALLY AND AS SUCCESSOR IN INTEREST TO BOYERTOWN PRODUCTS CO., INC., PEERLESS HEATER COMPANY, THE PEERLESS - HEATER COMPANY, AMERICAN MANAGEMENT CORPORATION, PEERLESS INDUSTRIES, INC., ESTATE CONSULTANTS, INC., THE EASTERN FOUNDRY, COMPANY, PEERLESS BOILERS LLC, INDIVIDUALLY AND AS SUCCESSOR IN INTEREST TO THE EASTERN FOUNDRY COMPANY, EAFCO, PEERLESS HEATER COMPANY, THE PEERLESS HEATER COMPANY, AMERICAN MANAGEMENT COMPANY, PEERLESS INDUSTRIES, ESTATE CONSULTANTS, INC., AND DOE COMPANY, PEERLESS HEATER CO. INDIVIDUALLY, AND AS SUCCESSOR IN INTEREST TO BOYERTOWN PRODUCTS CO, INC. AND DOE COMPANY., ROBERT FISH, INDIVIDUALLY AND AS SHAREHOLDER/DIRECTOR OF PEERLESS HEATER COMPANY, BOILER PRODUCTS, CO., PEERLESS INDUSTRIES, INC., ATLANTIC SHORES CORP., AND DOE COMPANY, STANLEY BLOOM INDIVIDUALLY AND AS VICE PRESIDENT OF PEERLESS INDUSTRIES, INC. AND DOE COMPANY., Defendant.
Unpublished Opinion
Motion Date 07/11/2022
PRESENT: HON. ADAM SILVERA, Justice
DECISION + ORDER ON MOTION
HON. ADAM SILVERA, JUSTICE
The following e-filed documents, listed by NYSCEF document number (Motion 008) 396, 397, 398, 399, 400, 401, 402, 403, 404, 405, 406, 407, 408, 409, 410, 411, 412, 413, 414, 415, 416, 417, 418, 419, 420, 421, 425, 426, 427, 428, 429, 430, 431, 432, 433, 434, 435, 436, 437, 438, 439, 440, 441, 442, 443, 444, 445, 446, 447, 448, 449, 450, 451, 452, 453, 454, 455, 456, 457, 458, 486, 487, 488, 489, 490, 491, 492 were read on this motion to/for PARTIAL SUMMARY JUDGMENT.
Upon the foregoing documents, it is hereby ordered that Defendant Burnham LLC's (hereinafter referred to as "Burnham") motion for partial summary judgment on the issue of punitive damages is denied for the reasons set forth below.
Plaintiffs Christopher Yohe (hereinafter referred to as Mr. Yohe) and Barbara Yohe (hereinafter collectively referred to as Plaintiffs) filed suit against Burnham claiming personal injury due to alleged exposure to asbestos. Mr. Yohe joined the Plumber's Union in 1980, was a member of the Nassau County Plumbing Department, and worked various jobs for plumbing contractors. Subsequently, Mr. Yohe started his own plumbing business after he stopped working for Lotus Plumbing and Heating in 2003. Between 1985 and the mid 1990's Mr. Yohe regularly removed, repaired, and replaced Burnham boilers while working for BH Motto and Lotus Plumbing and Heating as a journeyman plumber in residential and commercial locations, which allegedly exposed him to asbestos dust. When repairing and replacing boilers, he would replace "worn out and damaged jackets, change the burners on the sections of the boilers, and repaired the refractory material inside the boiler chamber." Affirmation In Opposition To Burnham's Motion For Partial Summary Judgment, p. 5, ¶ 13. Mr. Yohe identified Burnham as the manufacturer of the boiler by the tags on the front top left of the boilers in question. Plaintiff argues, inter alia, that Burnham failed to place a warning on their boilers even after obtaining the knowledge of the harmful and dangerous effects when exposed to asbestos warranting the imposition of punitive damages. Conversely, Burnham argues that any asbestos exposure from Plaintiffs work on Burnham boilers was significantly below threshold limit values and exposure limits set by the standards and regulations of the Occupational Safety and Health Act (hereinafter referred to as "OSHA"). Burnham moves for partial summary judgment on the issue of punitive damages. Plaintiff opposes, and Burnham replies.
Pursuant to CPLR 3212(b), a motion for summary judgment, "shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party." "[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. This burden is a heavy one and on a motion for summary judgment, facts must be viewed in the light most favorable to the non-moving party. If the moving party meets this burden, the burden then shifts to the non-moving party to establish the existence of material issues of fact which require a trial of the action". Jacobsen v New York City Health and Hosps, Corp., 22 N.Y.3d 824, 833 (2014) (internal citations and quotations omitted). "The moving party's '[f]ailure to make [a] prima facie showing [of entitlement to summary judgment] requires a denial of the motion, regardless of the sufficiency of the opposing papers'". Vega v Restani Constr. Corp., 18 N.Y.3d 499, 503 (2012) (internal emphasis omitted).
In support of their motion, Burnham contends that Plaintiff cannot identify evidence to justify the imposition of punitive damages and that such damages are not warranted under New York Law. See Memorandum Of Law In Support Of Defendant Burnham LLC's Motion For Partial Summary Judgment, p. 9. Burnham relies upon a study conducted by Dr. William E. Longo, a microscopist, arguing that Plaintiffs exposure to asbestos was below OSHA's permissible exposure limit (hereinafter referred to as "PEL"). As such, Burnham contends that Burnham's failure to warn does not rise to reckless and wanton disregard to support a claim for punitive damages. Conversely, Plaintiff argues that "Burnham's attempted reliance on the one isolated study by a microscopist, coupled with its misuse and misrepresentations.. . demonstrate the [lack of merit in the] present motion." Affirmation In Opposition, supra, p. 6, ¶ 16.
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 91st St. Crane Collapse Litig., 154 A.D.3d 139, 156 (1st Dept 2017) (internal parentheses omitted).
In the case at bar, the single study conducted by Dr. Longo does not support a finding for partial summary judgment on the issue of punitive damages. In his deposition testimony, Dr. Longo concedes that he never conducted any studies on a Burnham boiler. See Affirmation In Opposition, supra, Exh. 4, Depo. Tr. of William E. Longo, PH.D., dated December 16, 2015, p. 36, In. 10-12. Further, Dr. Longo does not rely upon any information regarding Burnham boilers, as Dr. Longo testified that he relies on the mixing and removal of materials which cause significant exposure. See Id. at p. 37, In. 14-17. "A court's function on a motion for summary judgment involves issue finding rather than issue determination". Farias v Simon, 122 A.D.3d 466, 468 (1st Dept 2014). Here, the Court need only determine whether a genuine issue of material fact exists as to whether Burnham's conduct rises to the level of wanton disregard for punitive damages to be imposed.
Further, the Appellate Division, First Department, has previously held "that... compliance with a statute may constitute some evidence of due care". Lugo v UN Toys, Ltd., 146 A.D.2d 168, 170 (1st Dept 1989). Thus, evidence of compliance with the OSHA PEL may be used to support the argument that punitive damages should not be imposed. However, as the Appellate Division, First Department, found in Lugo, "compliance with a statute... does not preclude a finding of negligence." Id. As such, Dr. Longo's study, which infers Plaintiffs exposure was below OSHA's PEL, does not refute that Bumham may have acted with wanton disregard by failing to warn Plaintiff of the ultra-carcinogenic hazards of asbestos.
In addition, Burnham argues that according to the decision in Maltese, supra, punitive damages are not appropriate when the claim rests upon an alleged failure to warn. However, the New York Court of Appeals has 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). This Court further notes that where a Plaintiff provides evidentiary facts tending to show that defendant's warnings were 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). Plaintiff has proffered evidence that demonstrates Burnham failed to warn Plaintiff of the hazards of asbestos. During the direct testimony of the corporate representative of 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]ha's correct." Id. at In. 20. As such, Burnham has failed to demonstrate their prima facie burden that punitive damages are not warranted herein.
Accordingly, it is
ORDERED that Defendant Burnham LLC's motion for partial summary judgment is hereby denied in its entirety; and it is further
ORDERED that, within 21 days of entry, plaintiffs shall serve a copy of this . decision/order upon all parties, together with notice of entry.
This constitutes the decision / order of the Court