Opinion
Index No. 190143/2020 Motion Seq. No. 002
01-09-2024
GERALD PALMIERI, Plaintiff, v. A.O. SMITH WATER PRODUCTS CO., ABB, INC. INDIVIDUALLY AND AS SUCCESSOR IN INTEREST TO ITE CIRCUIT BREAKERS, INC., AERCO INTERNATIONAL, INC., AMCHEM PRODUCTS, INC., N/K/A RHONE POULENC AG COMPANY, N/K/A BAYER CROPSCIENCE INC, BMCE INC., F/K/A UNITED CENTRIFUGAL PUMP, BURNHAM, LLC, INDIVIDUALLY, AND AS SUCCESSOR TO BURNHAM CORPORATION, CBS CORPORATION, F/K/A VIACOM INC., SUCCESSOR BY MERGER TO CBS CORPORATION, F/K/A WESTINGHOUSE ELECTRIC CORPORATION, COLUMBIA BOILER COMPANY OF POTTSTOWN, CRANE CO., CROSBY VALVE LLC, 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, FULTON BOILER WORKS, INC., GENERAL ELECTRIC COMPANY, GOULDS PUMPS LLC, GOULD ELECTRONICS INC., HARSCO CORPORATION, AS SUCCESSOR TO PATTERSON-KELLEY COMPANY, INC., INDIVIDUALLY AND D/B/A PATTERSON-KELLEY, HONEYWELL INTERNATIONAL, INC., F/K/A ALLIED SIGNAL, INC. / BENDIX, ITT LLC., INDIVIDUALLY AND AS SUCCESSOR TO BELL & GOSSETT AND AS SUCCESSOR TO KENNEDY VALVE MANUFACTURING CO., INC., MORSE TEC LLC, PB HEAT LLC, INDIVIDUALLY AND AS SUCCESSOR IN INTEREST TO PEERLESS INDUSTRIES, PFIZER, INC. (PFIZER), RHEEM MANUFACTURING COMPANY, SIEMENS INDUSTRY, INC., SUCCESSOR IN INTEREST TO SIEMENS ENERGY & AUTOMATION, 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, FOSTER WHEELER, L.L.C., BW/IP, INC. AND ITS WHOLLY OWNED SUBSIDIARIES, PORT AUTHORITY OF NEW YORK AND NEW JERSEY, Defendant.
Unpublished Opinion
Motion Date 10/31/2023
PRESENT: HON. ADAM SILVERA, Justice
DECISION + ORDER ON MOTION
HON. ADAM SILVERA, JUSTICE
The following e-filed documents, listed by NYSCEF document number (Motion 002) 146, 147, 148, 149, 150, 151, 152, 153, 154, 155, 156, 157, 158, 159, 160, 161, 162, 163, 164, 165, 166, 167, 168, 170, 171, 172, 173, 174, 175, 176, 177, 178, 179, 180, 181, 182, 183, 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 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 Bumham LLC ("Bumham") moves for partial summary judgment to dismiss plaintiff s punitive damages claim on the basis that asbestos exposure from Bumham boilers would fall below TLV or PEL/OSHA limits and per Bumham'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 (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). 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". Reidv Georgia-Pacific Corp., 212 A.D.2d 462, 463 (1st Dep't 1995).
Defendant Bumham 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. 4-6. 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, id., 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 Bumham's boilers. Thus, defendant Bumham 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 Bumham's prior knowledge of and participation in the use of asbestos-containing boiler parts. See Affirmation in Opposition, supra, p. 11-13.
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)(intemal 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 Bumham, Mr. Sweigart, was asked whether it was correct that "Bumham, never...put a warning regarding 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]haf 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. As a reasonable juror could find that defendant Bumham'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 Bumham'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.