Terrillion v Loveland Prods., Inc.

Annotate this Case

Download PDF

Terrillion v Loveland Prods., Inc. 2011 NY Slip Op 33506(U) December 19, 2011 Supreme Court, Nassau County Docket Number: 22734/10 Judge: Denise L. Sher Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SHORT FORM ORDER SUPREME COURT OF THE STATE OF NEW YORK PRESENT: HON. DENISE L. SHER Acting Supreme Cour Justice BEVERLY A. TERRLLION , as Administratrix of the Estate of GREGORY F. TERRLLION BEVERL Y A. TERRLLION , Individually, and JACL YN TERRLLION Plaintiffs - against - TRIAL/IAS PART 32 NASSAU COUNTY Index No. : 22734/10 Motion Seq. No. : 01 Motion Date: 08/31/11 LOVELAND PRODUCTS, INC. , BASF CORPORATION ARYSTA LIFESCIENCE , AMERICAN CYANAMID CO. CLARK MOSQUITO CONTROL PRODUCTS , INC., BA YER CROPSCIENCE , LP , FAIRFIELD AMERICAN CORP. , AOSI CO. , RIGO CO. , VELSICOL CHEMICAL CORPORATION , VELSICOL CHEMICAL LLC DREXEL CHEMICAL COMPANY and MORTON GROVE PHARMACEUTICALS Defendants. The followin papers have been read on this motion: Papers Numbered Notice of Motion Affrmation and Exhibits and Memorandum of Law Affrmation in O osition and Exhibits Memorandum of Law in Reply Upon the foregoing papers, it is ordered that the motion is decided as follows: Defendants Loveland Products , Inc. , BASF Corporation, Arsta LifeScience North America , LLC, Clarke Mosquito Control Products, Inc. , Bayer Crop Science, LP (named herein as Bayer Environmental Science alk/a Bayer Crop Science , LP"), Velsicol Chemical LLC (f/ka [* 2] Velsicol Chemical Corporation), and Drexel Chemical Company (hereinafter the " moving defendants ) move , pursuant to CPLR 9 3211(a)(5) and (a)(7), for an order dismissing the Verified Compliant. Plaintiffs oppose the motion. In this action , plaintiffs seek to recover damages arising from decedent Gregory F. Terrilion s wrongful death allegedly caused by his continuous exposure to a variety of toxic chemicals during the course of his employment as a mosquito control laborer/mosquito control supervisor with the Nassau County Deparment of Public Works between , in or about 1988 and 2007. As a result of his exposure , decedent became seriously il , physically disabled and eventually rendered terminally il and ultimately died on December 1 , 2008. In their Verified Complaint , plaintiffs allege ten causes of action including to wit: 1) strict liability/unsafe product design; 2) strict liability/manufacturing defect; 3) strict liability/failure to war; 4) negligence; 5) breach of express waranty; 6) breach of implied waranty; 7) fraudulent concealment; 8) wrongful death; 9) loss of consortiumwife and daughter; 10) psychological and emotional injury to daughter as result of decedent' death. Moving defendants seek dismissal of the Verified Complaint pursuant to CPLR 9 [* 3] 3211(a)(5) and (a)(7). In support of their CPLR 93211(a)(7) motion, moving defendants allege that the Verified Complaint is fatally flawed because it fails to identify the specific products to which decedent was exposed , the manufacturer of each of the products and attendant details as to decedent's exposure , all of which make it impossible , as a practical matter , for moving defendants to respond properly to the Verified Complaint and assess potential affirmative defenses. They further maintain that the Verified Complaint fails to provide moving defendants with notice vis-a-vis the transactions or occurrences at issue as required pursuant to CPLR 9 3013. Moving defendants contend that the first , second , fourh , fifth , sixth and seventh causes of action sounding respectively in design defect , manufacturing defect , negligent design and manufacture; breach of express waranty; breach of implied waranty of merchantabilty, i. e. fitness for their intended purpose and fraudulent concealment of the defective nature of the products at issue are deficient. In addition to plaintiffs ' failure to specify which of the defendants ' products are at issue moving defendants contend that the Verified Complaint fails to identify the specific conduct on the par of each moving defendant that allegedly caused the claimed injuries. With respect to the fraudulent concealment claim , moving defendants maintain that plaintiffs have failed to meet the heightened pleading stadard set forth in CPLR 9 3016(b). Under the circumstances extant , the Cour finds no basis to dismiss the Verified Complaint at this pre- discovery stage based on the deficiencies alleged. On a motion to dismiss pursuant to CPLR 9 3211(a)(7), the Cour' s fuction is determine whether the plaintiffs ' actual allegations fit within any cognizable legal theory (see [* 4] Nonnon v. City of New York 9 N. Y.3d 825 , 842 N. Y.S.2d 756 (2007)), without regard to whether these allegations can ultimately be established. See Colasacco v. Robert E. Lawrence Real Estate 68 A.D. 3d 706 890 N. Y.S.2d 114 (2d Dept. 2009). The Cour must afford the pleading a See Hallwell liberal construction and give plaintiffs the benefit of every possible legal inference. v. Gordon 61 A.D. 3d 932 878 N. Y.S.2d 137 (2d Dept. 2009). On such a motion , however , the Cour wil not accept as true bare legal conclusions and factual claims which are flatly contradicted by the evidence. See Palazzolo v. Herrick, Feinstein, LLP 298 A.D.2d 372, 751 Y.S.2d 401 (2d Dept. 2002). A motion to dismiss pursuant to CPLR 9 3211(a)(7) will be denied" ' unless it has been shown that a material fact as claimed by the pleader to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it.' Y.S.2d 153 (2d Dept. 2010) Sokol quoting Guggenheimer v. v. Ginzburg, Leader 74 A.D. 3d 1180 904 43 N. Y.2d 268 , 401 N. Y.S.2d 182 (1977). A wrongful death action is brought on behalf of the decedent' s distributees and not on behalf of decedent' s estate. As such , the damages recovered are not in compensation for the injur sustained by decedent , result of the decedent' s death. but rather for the pecuniar injuries suffered by the distributees as a See Matter of Ramirez 14 Misc. 3d 480 826 N. S.2d 553 (Surrogate s Court Bronx County 2006). The proceeds are paid directly to the distributees in the proportions directed by the Cour , determined by their respective monetar injuries. v. County of Greene 14 N. Y.3d 67 See Heslin 896 N. Y.S.2d 723 (2010). The person entitled to commence a wrongful death action is not the decedent' s distributee , who is the beneficiar of the claim , but the decedent's personal representative. A personal representative is defined as a person who has received letters to administer the estate of the decedent. See NEW YORK ESTATE , POWERS AND [* 5] TRUSTLAW91- 2.13. A wrongful death cause of action is created solely by statute and requires strict adherence to authorizing legislation. Y.S. 2d 476 (2d Dept. 2005), St. Vincent' s Hasp. of NY. 25 A. v. See Langan appeal dismissed 3d 90 , 802 6 N. Y.3d 890 817 N. Y.S. 2d 625 (2006). Pursuant to NEW YORK ESTATE , POWERS AND TRUST LAW 9 5- 1 (1), a wrongful death action must be commenced within two years after the decedent' s death. Since the decedent died on December 1 , 2008 , plaintiffs were required to commence the wrongful death claim by December 2010. However , the Verified Complaint in this action was not fied until December 20 2010. The wrongful death and derivative loss of consortium claims asserted in the eighth and ninth cause of action are , therefore , time bared and must be dismissed. County Canada Dry Bottling Co. , v. ofN Y. See Public Adm 'r of Kings 16 AD. 3d 397 , 790 N. Y.S.2d 711 (2d Dept. 2005). Under the facts at bar , no legal basis exists to extend the statute oflimitations to save the claim. See Baez v. New York City Health and Hospitals Corp. 80 N. Y.2d 571 592 N. Y.S. 2d 640 (1992). Since plaintiffs ' wrongful death claim is time bared , a derivative cause of action to recover for loss of consortium due to decedent's death canot be sustained. See Lif Schildkrout 49 N. Y.2d 622 , 427 N. Y.S.2d 746 (1980). Moreover , there can be no recovery for loss of consortium in a wrongful death action. Y.S.2d 424 (2d Dept. 2006); See Monson Dobin v. Town of Is lip, v. Israeli 35 AD.3d 680 828 11 AD. 3d 577 , 783 N. Y.S. 2d 64 (2d Dept. 2004). In the tenth cause of action , plaintiffs allege that as a result of decedent' s contact with and/or exposure to defendants ' harful and dangerous products , decedent suffered genetic injuries which were transmitted to his daughter , plaintiff Jaclyn Terrillon , who was born on [* 6] Januar 7 , 1986 , causing her to suffer severe and permanent unspecified emotional , physical and psychological injuries. To the extent that the tenth cause of action may be read to allege a claim for genetic plaintiff Jaclyn Terrilion prior to her conception , the claim must be dismissed injur suffered by as New York does not recognize a cause of action for preconception torts. 88 AD. 3d 785 930 N. Is. Med Group, Ruffng 2d 649 (2d Dept. 2011); 1 AD. 3d 339 , 766 N. Y.S. 2d 439 (2d Dept. 2003), v. See Upshur v. Staten Hoechst Celanese appeal and leave to appeal dismissed 2 N. Y.3d 820 , 781 N. Y.S. 2d 283 (2004). While plaintiffs contend that the instant case is similar to DES exposure cases in which the Court of Appeals held that children who suffered injuries as a result of their mother s ingestion of DES could recover against the manufacturer of the drug v. (see Hymowitz Eli Lily Co. 73 N. Y.2d 487 541 N. Y.S. 2d 941 (1989)), plaintiffs have offered no authority or rationale to support such a theory. Similarly, decedent's daughter s post- birth secondar exposure claim to defendants chemicals/products which she alleges her father , Gregory F. Terrilion , transported on his clothing and/or his personal belongings or otherwise transmitted to her , as asserted in the tenth See Matter of New York City Asbestos Litig. 5 N. Y.3d 486 806 cause of action is deficient. S.2d 146 (2005). Manufacturers of defective products may be held strictly liable for injur products , meaning that they may be liable regardless of privity, foreseeabilty See Sprung v. 99 N. Y.2d 468 , 758 N. Y.S.2d 271 (2003); MTR Ravensburg, 32 N. Y.2d 330 345 N. Y.S. 2d 461 (1973). A product may be caused by their or reasonable care. Codling v. Paglia defective when it contains a manufacturing flaw, is defectively designed or is not accompanied by adequate warings for the use of the product. See Liriano v. Hobart Corp. 92 N. Y.2d 232 677 N. Y.S.2d 764 (1998); [* 7] v. Robinson Reed-Prentice Div. of Package Mach. Co. 49 N. Y.2d 426 N. Y.S. 2d 717 471 (1980). Both negligence and strict liabilty standards require that a manufacturer or seller of a product , who knows or should know of non-obvious dangers inherent in the foreseeable uses of its products , adequately war Supp. 1128 , 1133 (E. See Burke users of those dangers. v. Dow Chemical Co. , 797 Y. 1992). Under the doctrine of strict products liabilty, the manufacturer of a product is under a nondelegable duty to produce a defect free product. See Perez Liabilty is imposed irrespective of fault. v. Radar Realty, 7 Misc.3d 1015(A), 801 aff' 34 AD. 3d 305 824 N. Y.S.2d 87 (1 st Dept. S.2d 241 (Sup. Ct. Bronx County 2005) 2006). Restrepo As noted in v. Rockland Corp. 38 AD.3d 742 832 N. 2007), the FEDERAL INSECTICIDE , FUNGICIDE , AND RODENTICIDE ACT , S.2d 272 (2d Dept. 7 USC 9 136 et seq. FIFRA" ), preempts causes of action based on common law inadequate labeling or failure to war. See Warner v. American Fluoride Corp. 204 AD.2d 1 616 N. Y.S.2d 534 (2d Dept. 1994). FIFRA is a comprehensive regulatory scheme which authorizes the Environmental Protection Agency (" ) to regulate most aspects of the development , manufacture , sale labeling/packaging and use of pesticides and insecticides. All pesticides sold in the United States must be registered with the E. A in compliance with FIFRA and its regulations. The preemptive scope ofFIFRA does not extend , however , to state law claims predicated on other than inadequate labeling or packaging (failure to war) causes of action i. e. those based upon inter alia express waranty, defective design or intentional concealment of potential health risks are not preempted. Dept. 1999). See Younger v. Spartan Chem. Co. 252 AD.2d 265 686 N. S.2d 152 (3d [* 8] The third cause of action in which plaintiffs allege inter alia that defendants failed to provide the public , including the decedent herein , with adequate and/or proper training/warings regarding the handling/dispensing/use of hazardous chemicals including, but not limited to Scourge , Anvil , Resmetrin, Melathion , Lindane , DDT and Chlordane is preempted by FIFRA and must be dismissed. Moreover , to the extent that plaintiffs ' negligence , strict liability and breach of implied warranty claims require a showing that the defendants ' labeling and packaging were a factor in causing the complained of injuries , such claims are expressly preempted by FIFRA. Warner v. American Fluoride Corp., supra See at 13. Generally, causes of action based on negligence , breach of express waranty and implied waranty and strict products liabilty as set forth in the first , second , fourh , and fifth causes of action of plaintiffs ' Verified Complaint , which are not premised on a failure to war or inadequate labeling, survive preemption and wil not be dismissed. & Paint 253 AD.2d 417 676 N. Y.S.2d 633 (2d Dept. 1998); 414 676 N. Y.S.2d 613 (2d Dept. 1998); Wallace v. See Sabbatino v. Lopez Parks Corp. v. Sons Hardware Rosin Hernandez 253 AD.2d 212 AD. 2d 132 629 N. Y.S.2d Dept. 1995). Discovery wil , however , be required to test the parameters of said causes of action. Since the scope ofFIFRA' s express preemption provision only extends to claims which are predicated on failure to war or inadequate labeling, to the extent that plaintiffs ' claims are not so predicated , such claims are actionable. (N. See Higgins v. Monsanto Co. 862 F Supp. 751 , 758 Y. 1994). With respect to the seventh cause of action , the Cour notes that , where the gist of the alleged wrong is an injur resulting from negligence or strict products liability, if the allegations pled are true , the damages incured are the product of defendants ' negligence/design/manufacture and/or defective product and not of defendants ' fraud. The fraud of defendants in representing that [* 9] their products were safe , fit and effective for the use for which they were intended do not result in the inflction of any additional damages beyond those to which plaintiffs would be entitled in the event they were to prevail on the negligence and strict products liabilty causes of action. The seventh cause of action for fraudulent concealment is , therefore , not viable. Carbide Corp. , supra v. See Ruffng Union at 528. Accordingly, moving defendants ' motion , pursuant to CPLR 9 3211(a)(5) and (a)(7), for an order dismissing the Verified Compliant is hereby GRANTED to the extent that the third, seventh, eighth, ninth and tenth causes of action are dismissed. The first , second, fourh , fifth and sixth causes of action continue. It is fuher ordered that the paries shall appear for a Preliminar 2012 , at 9:30 a. Conference on Februar , at the Preliminar Conference Desk in the lower level of 100 Supreme Cour Drive, Mineola, New York , to schedule all discovery proceedings. A copy of this Order shall be served on all paries and on the DCM Case Coordinator. There wil be no adjournents , except by formal application pursuant to 22 NYCRR 9 125. This constitutes the Decision and Order of this Court. Dated: Mineola, New York December 19 , 2011 ENTERED DEC 2 1 2011 NASSAU COUNTY COUNTY CLERK' S OFFICE

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.