Opinion
No. 16681 Index No. 190261/19 Case No. 2021-04739
11-17-2022
Victor Arana, as Administrator for the Estate of Gloria M. Maryn, Plaintiff-Respondent, v. A.O. Smith Water Products Co., et al., Defendants, J-M Manufacturing Company, Inc., Defendant-Appellant.
Manning Gross + Massenburg, LLP, New York (Anna Hwang of counsel), for appellant. Weitz & Luxenberg, P.C., New York (Jason P. Weinstein of counsel), for respondent.
Manning Gross + Massenburg, LLP, New York (Anna Hwang of counsel), for appellant.
Weitz & Luxenberg, P.C., New York (Jason P. Weinstein of counsel), for respondent.
Before: Kern, J.P., Scarpulla, Rodriguez, Pitt, Higgitt, JJ.
Order, Supreme Court, New York County (Adam Silvera, J.), entered on or about October 8, 2021, which, to the extent appealed from, denied the motion of defendant J-M Manufacturing Company (JMM) for summary judgment dismissing the complaint as against it, unanimously modified, on the law, to dismiss plaintiff's punitive damages demand, and otherwise affirmed, without costs.
Defendant is a former distributor of asbestos cement pipe (ACP). Plaintiff Arana, a plumber's laborer, alleges that he worked with ACP distributed by JMM and that his mother, Gloria M. Maryn, was secondarily exposed to asbestos-containing dust while she laundered his clothes.
Questions of fact and credibility exist as to whether plaintiff Arana worked with ACP distributed by JMM (see Comeau v W.R. Grace & Co.- Conn., 216 A.D.2d 79, 80 [1st Dept 1995]; see also Matter of New York City Asbestos Litig., 7 A.D.3d 285 [1st Dept 2004]; Dollas v Grace & Co., 225 A.D.2d 319 [1st Dept 1996]).
There is insufficient evidence, however, to support plaintiff's punitive damages demand. "Even where there is gross negligence, punitive damages are awarded only in 'singularly rare cases' such as cases involving an improper state of mind or malice or cases involving wrongdoing to the public" (Anonymous v Streitferdt, 172 A.D.2d 440, 441 [1st Dept 1991], quoting Rand & Paseka Mfg. Co. v Holmes Protection, 130 A.D.2d 429, 431 [1st Dept 1987], lv denied 70 N.Y.2d 615 [1988]). This is not such a singularly rare case (see Matter of New York City Asbestos Litig., 225 A.D.2d 414, 415 [1st Dept 1996], affd 89 N.Y.2d 955 [1997]; see also Matter of Eighth Jud. Dist. Asbestos Litig., 92 A.D.3d 1259 [4th Dept 2012], lv denied 19 N.Y.3d 803 [2012]). There is no evidence of a concerted effort to suppress information about the dangers of asbestos. To the contrary, the product came with multiple warnings that it could not safely be worked with using dry saws or the like. To the extent those warnings were not present on each piece of pipe may evidence negligence, it does not evidence malice (compare Matter of 91st St. Crane Collapse Litig., 154 A.D.3d 139 [1st Dept 2017]).