Giuliano v. Aerco Int'l

Full title: ANTHONY J GIULIANO, Plaintiff, v. AERCO INTERNATIONAL, INC, AMCHEM…

Court: Supreme Court, New York County

Date published: Oct 4, 2023

2023 N.Y. Slip Op. 33442 (N.Y. Sup. Ct. 2023)

Opinion

Index No. 190325/2019 Motion Seq. No. 001 NYSCEF Doc. No. 229

10-04-2023

ANTHONY J GIULIANO, Plaintiff, v. AERCO INTERNATIONAL, INC, AMCHEM PRODUCTS, INC., N/K/A RHONE POULENC AG COMPANY, N/K/A BAYER CROPSCIENCE INC, ARMSTRONG INTERNATIONAL, INC, ATWOOD & MORRILL COMPANY, BMCE INC., F/K/A UNITED CENTRIFUGAL PUMP, BORGWARNER MORSE TEC LLC, 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, CERTAINTEED CORPORATION, COOPER CROUSE-HINDS, CRANE CO, CROSBY VALVE LLC, DAP, INC, EATON CORPORATION, INDIVIDUALLY AND AS SUCCESSOR -IN-INTEREST TO CUTLER HAMMER, INC, FLOWSERVE US, INC. INDIVIDUALLY AND SUCCESSOR TO ROCKWELL MANUFACTURING COMPANY, EDWARD VALVE, INC., NORDSTROM VALVES, INC., EDWARD VOGT VALVE COMPANY, AND VOGT VALVE COMPANY, FMC CORPORATION, ON BEHALF OF ITS FORMER CHICAGO PUMP & NORTHERN PUMP BUSINESSES, FOSTER WHEELER, L.L.C, GARDNER DENVER, INC, GENERAL ELECTRIC COMPANY, GENERAL RAILWAY SIGNAL COMPANY, GOULD ELECTRONICS INC, GOULDS PUMPS LLC, GROVE U.S., LLC, AS SUCCESSOR TO MANITOWOC CRANE INC, HARSCO CORPORATION, AS SUCCESSOR TO PATTERSON-KELLEY COMPANY, INC., INDIVIDUALLY AND D/B/A PATTERSON-KELLEY, IMO INDUSTRIES, INC, ITT LLC., INDIVIDUALLY AND AS SUCCESSOR TO BELL & GOSSETT AND AS SUCCESSOR TO KENNEDY VALVE MANUFACTURING CO., INC, PFIZER, INC. (PFIZER), ROCKWELL AUTOMATION, INC.,AS SUCCESSOR IN INTEREST TO ALLEN- BRADLEY COMPANY, LLC, ROPER PUMP COMPANY, SAINT-GOBAIN ABRASIVES, INC., INDIVIDUALLY, AND AS SUCCESSOR TO NORTON COMPANY, SCHNEIDER ELECTRIC USA, INC. FORMERLY KNOWN AS SQUARE D COMPANY, SIEMENS INDUSTRY, INC., SUCCESSOR IN INTEREST TO SIEMENS ENERGY & AUTOMATION, INC, SPIRAX SARCO, INC. INDIVIDUALLY AND AS SUCCESSOR TO SARCO COMPANY, THE NASH ENGINEERING COMPANY, U.S. RUBBER COMPANY (UNIROYAL), UNION CARBIDE CORPORATION, VIKING PUMP, INC WARREN PUMPS, LLC, INDUSTRIAL HOLDINGS CORPORATION, INDIVIDUALLY AND AS SUCCESSOR IN INTEREST TO CARBORUNDUM, LEVITON MANUFACTURING CO., INC., Defendant.

ADAM SILVERA, J.S.C.

Unpublished Opinion

MOTION DATE 06/20/2023

DECISION + ORDER ON MOTION

ADAM SILVERA, J.S.C.

The following e-filed documents, listed by NYSCEF document number (Motion 001) 152, 153, 154, 155, 156, 157, 158, 159, 160, 161, 162, 163, 164, 165, 166, 167, 168, 169, 170, 171, 172, 173, 174, 175, 178, 184, 185, 186, 187, 188, 189, 190, 191, 192, 193, 194, 195, 196, 197, 198, 199, 200, 201, 202, 203, 204, 205, 206, 207, 208, 209, 210, 211, 212, 213, 214, 215, 216, 217, 219, 220, 221, 222, 223, 224, 225, 226, 227, 228 were read on this motion to/for JUDGMENT - SUMMARY.

Upon the foregoing documents, it is ordered that the instant motion for partial summary judgment on the issue of punitive damages is denied in accordance with the decision below.

Here, defendant Burnham LLC ("Burnham") moves to dismiss plaintiffs punitive damages claim on the basis that asbestos exposure from Burnham boilers would fall below TLV or PEL/OSHA limits and per Burnham's lack of workers' compensation claims for asbestos-related disease. See Memorandum of Law in Support of Defendant Burnham LLC's Motion for Partial Summary Judgment, p. 9-11.

The Court notes that 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. See 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 (1^st Dep't 1992), citing Dauman Displays, Inc. v Masturzo, 168 A.D.2d 204 (1^st 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). Furthermore, the Appellate Division, First Department has held that on a motion for summary judgment, it is moving defendant's burden "to unequivocally establish that its product could not have contributed to the causation of plaintiffs injury". Reid v Georgia-Pacific Corp., 212 A.D.2d 462, 463 (1^st Dep't 1995).

Defendant Burnham has plainly not met their burden at summary judgment. The TLV/OSHA standards have little bearing on plaintiffs unequivocal and consistent testimony regarding his work with Burnham boilers and his specific asbestos exposure therein. See Affirmation in Opposition to Burnham's Motion for Partial Summary Judment [szc], p. 4-5. Similarly, the lack of compensation claims from Burnham's employees are wholly irrelevant to moving defendant's conduct as manufacturers of asbestos-containing boilers. Plaintiff correctly argues that the single study conducted by William E. Longo, PhD in 2007 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, supra, Exh. 4, Deposition Transcript of William E. Longo, PhD, dated December 16, 2015, p. 36, In. 10-12. In Dyer 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.

Furthermore, plaintiff has provided evidence sufficient to raise questions of fact as to defendant Burnham's prior knowledge of and participation in the use of asbestos-containing boiler parts. See Affirmation in Opposition, supra, p. 9-11.

As a reasonable juror could find that defendant Burnham's knowledge and use of asbestos in their boilers constituted a prioritization of their corporate benefits over plaintiffs safety, issues of fact exist to preclude summary judgment on punitive damages.

Accordingly, it is

ORDERED that defendant Burnham's motion for partial summary judgment is denied in its entirety; and it is further

ORDERED that within 30 days of entry plaintiff shall serve all parties with a copy of this Decision/Order with notice of entry.

This constitutes the Decision/Order of the Court.