Opinion
Index No. 190082/2019 Motion Seq. No. 002
10-24-2022
ANTHONY W MORALE, Plaintiff, v. A.O. SMITH WATER PRODUCTS CO., AMCHEM PRODUCTS, INC, N/K/A RHONE POULENC AG COMPANY, N/K/A BAYER CROPSCIENCE INC., BURNHAM, LLC, INDIVIDUALLY, AND AS SUCCESSOR TO BURNHAM CORPORATION, CERTAINTEED CORPORATION, CLEAVER BROOKS COMPANY, INC, COLUMBIA BOILER COMPANY OF POTTSTOWN, COMPUDYNE CORPORATION, INDIVIDUALLY, AND AS SUCCESSOR TO YORK SHIPLEY, INC, CRANE CO., CRANE CO. INDIVIDUALLY AND AS SUCCESSOR TO PACIFIC VALVES, CRANE CO., INDIVIDUALLY, AND AS SUCCESSOR TO CYCLOTHERM CORPORATION, FULTON BOILER WORKS, INC, GENERAL ELECTRIC COMPANY, ITT INDUSTRIES, INC. INDIVIDUALLY AND AS SUCCESSOR-IN-INTEREST TO HOFFMAN SPECIALTY, ITT LLC., INDIVIDUALLY AND AS SUCCESSOR TO BELL & GOSSETT AND AS SUCCESSOR TO KENNEDY VALVE MANUFACTURING CO., INC, KOHLER CO, PEERLESS INDUSTRIES, INC, PFIZER, INC. (PFIZER), RHEEM MANUFACTURING COMPANY, SLANT/FIN CORPORATION, TACO, INC, U.S. RUBBER COMPANY (UNIROYAL), UNION CARBIDE CORPORATION, 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, Defendant.
Unpublished Opinion
PRESENT: HON. ADAM SILVERA, JUSTICE
DECISION + ORDER ON MOTION
ADAM SILVERA, JUDGE
The following e-filed documents, listed by NYSCEF document number (Motion 002) 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, 112, 113, 123, 140, 141142, 143, 144, 145, 146, 147, 148, 149, 150, 151, 152, 153, 154, 155, 156, 157, 158, 159, 160, 161, 162, 163, 164, 165, 166, 167, 168, 169, 170, 171, 172, 173, 174, 175, 176, 177, 178, 179, 180, 181, 182, 183, 184, 185, 186, 187, 188, 196, 198 were read on this motion to/for PARTIAL SUMMARY JUDGMENT.
Upon the foregoing documents, it is 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.
The instant matter is premised upon Plaintiff Anthony Morale's alleged exposure to asbestos as a result of performing maintenance work on Burnham boilers. Plaintiff was deposed on April 23, 24, and 25, 2019, in which he testified that he worked on Burnham boilers between 1949 through 1995 at residential locations in Long Island and New York. Plaintiff testified that throughout his work as a heating technician, he was exposed to asbestos when he removed, serviced, and cleaned Burnham boilers without the use of a protective respiratory mask. Plaintiff further testified that he knew Burnham manufactured the boilers he worked on, as they had identifying nameplates on the boilers themselves. 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. 8 - 9. Burnham relies upon OSHA's permissible exposure limit (hereinafter referred to as "PEL") and Plaintiffs exposure to asbestos, claiming that exposure below the regulatory limit does not rise to reckless and wanton disregard to support a claim for punitive damages. In opposition, Plaintiff argues that OSHA is not applicable in the case at bar, as the "[a]sbestos standards set by OSHA. .. were never intended to be a safety guideline." Plaintiffs' Memorandum Of Law In Opposition To Defendant Burnham LLC's Motion For Partial Summary Judgment On The Issue Of Punitive Damages, p. 17, U 28 (internal emphasis omitted).
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 parenthesis omitted).
Although Plaintiff argues that OSHA is inapplicable in the instant matter, the Appellate Division, First Department, has previously held "that... compliance with a statute may constitute some evidence of due care". Lugo v LJN 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.
Moreover, it is well established that "on motions for summary judgment issue-finding rather than issue-determination, is the key to the procedure". Harlib v Chandris Lines, Inc., 374 N.Y.S.2d 6, 6 (1st Dept 1975). At issue herein is not whether Burnham complied with OSHA's PEL, rather, on the instant motion for summary judgment, the Court must determine whether an issue of fact exists and whether a reasonable trier of fact may conclude that Burnham acted with wanton and reckless disregard for failing to warn Plaintiff of the hazards of asbestos exposure.
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. See Memorandum Of Law In Support, supra, at p. 8. However, Plaintiff contends that Burnham's reliance on the Court of Appeals decision in Maltese is misplaced, as "punitive damages are undoubtedly permitted in failure to warn cases." Plaintiffs Memorandum Of Law In Opposition, supra, at p. 24, % 39. 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 Feldmcm, 123 A.D.2d 583, 584 (1986). Plaintiff has proffered evidence that demonstrates Burnham failed to warn Plaintiff of the hazards of asbestos. The corporate representative of Burnham, Mr. Roger Pepper, testified that up until 1982 Burnham never placed a warning regarding the dangers of asbestos on any of its boilers. See Plaintiffs Memorandum Of Law In Opposition, Exh. 21, Depo. Tr. of Roger Pepper, dated March 20, 2018, p. 2168, lnl5 - 18. 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 summary judgment 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 all parties with notice of entry.
This constitutes the decision/order of the Court.