Murphy v E.I. Du Pont De Nemours & Co.

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Murphy v E.I. Du Pont De Nemours & Co. 2020 NY Slip Op 31659(U) May 29, 2020 Supreme Court, New York County Docket Number: 156207/2018 Judge: Louis L. Nock Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [* 1] INDEX NO. 156207/2018 NYSCEF DOC. NO. 238 RECEIVED NYSCEF: 06/01/2020 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: PART HON. LOUIS L. NOCK Justice ---------------------------------------------------------------------------------X IAS MOTION 38EFM INDEX NO. LAURIE MURPHY, Plaintiff, MOTION DATE -vE.I. DU PONT DE NEMOURS & COMPANY, THE SHERWIN-WILLIAMS COMPANY, GENUINE PARTS COMPANY, d/b/a NAPA, BASF CORPORATION, Individually and as Successor in Interest to and d/b/a Glassurit and R-M company f/k/a Rinshed Mason Company, PPG INDUSTRIES, INC., PFIZER, INC., Successor-In-Interest To Wyeth, Inc., American Home Products Corporation And Boyle-Midway, RECKITT BENCKISER, INC. f/k/a Reckitt & Colman, Inc., Successor-In-Interest To Boyle-Midway, THE SAVOGRAN COMPANY, SAFETY-KLEEN SYSTEMS, INC., SHELL OIL COMPANY, UNITED STATES STEEL CORPORATION, RADIATOR SPECIALTY COMPANY, UNIVAR USA, INC. f/k/a Chemcentral Corp., And Van Waters & Rodgers, Inc., TEXACO, INC., ASHLAND, LLC. f/k/a Ashland, Inc., SUNOCO, LLC f/k/a Sonoco, Inc. (R&M), ICC CHEMICAL CORPORATION, MOTION SEQ. NO. 156207/2018 08/15/2018, 08/23/2018, 08/30/2018, 10/10/2018 001, 002, 005, 010 DECISION + ORDER ON MOTION Defendants. ---------------------------------------------------------------------------------X LOUIS L. NOCK, J. The following e-filed documents, listed by NYSCEF document number (Motion 001) 29, 30, 31, 32, 33, 34, 87, 103, 104, 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 145, 146, 147, 157; (Motion 002) 35, 36, 37, 88, 115, 116, 117, 118, 119, 120, 121, 122, 123, 151; (Motion 005) 53, 54, 55, 56, 57, 58, 90, 129, 130, 131, 132, 133, 134, 135, 136, 137, 138, 152, 153; and (Motion 010) 93, 94, 95, 96, 97, 98, 159, 170, 171, 172, 173, 174, 175, 176, 177, 178, 179, 180, 181, 182, 184, 186, 187, 188, 197, 212 were read on these motion to/for DISMISSAL . Upon the foregoing documents, the motions of defendants the Sherwin-Williams Company (“Sherwin-Williams”) and PPG Industries, Inc (“PPG”) (Motion Seq. 001), BASF 156207/2018 MURPHY, LORI vs. E.I. DU PONT DE NEMOURS Motion No. 001 002 005 010 1 of 14 Page 1 of 14 [* 2] INDEX NO. 156207/2018 NYSCEF DOC. NO. 238 RECEIVED NYSCEF: 06/01/2020 Corporation, Individually and as Successor in Interest to and d/b/a Glasurit and R-M Company f/k/a Rinshed Mason Company (“BASF”) (Motion Seq. 002), the Savogran Company (“Savogran”) (Motion Seq. 005), and Reckitt Benckiser, Inc. f/k/a Reckitt & Colman, Inc. (“Reckitt”) (Motion Seq. 010) (all together, the “Defendants”) to dismiss are denied, in accord with the following memorandum decision. Motion sequences 001, 002, 005, and 010 are consolidated for decision. Background Plaintiff Laurie Murphy (“Plaintiff”) is the Personal Representative of the Estate of her deceased husband, James Murphy (the “Decedent”).1 As alleged in the complaint (the “Complaint”), the Decedent was employed at the General Motors Corporation Tarrytown Plant in Tarrytown, New York, on the paint line and paint repair line from 1979 to 1996, during which time he was exposed to “various benzene-containing products, including but not limited to, paints, primers, solvents, degreasers, rust penetrants and other benzene-containing products (“benzene-containing products”) which products and/or their ingredients, were manufactured, refined, designed, produced, processed, compounded, converted, packaged, sold, distributed, marketed, re-labeled, supplied and/or otherwise placed into the stream of commerce” by the Defendants (Complaint ¶¶ 1, 26). The Decedent also sustained non-occupational exposure to benzene-containing products in an unspecified location from approximately 1973 to 2015 (id.). On July 21, 2015, the Decedent was diagnosed with Acute Myelogenous Leukemia, which resulted in his death on January 28, 2018 (id. ¶ 28). Plaintiff pleads that the Decedent’s illness was “a direct and proximate result of his exposure to the Defendants’ benzene-containing Counsel to the Plaintiff advised the court at oral argument that Plaintiff’s name was inadvertently misspelled as “Lori” in the summons and Complaint and made an oral application to amend the caption to modify her name to the correct spelling, “Laurie.” The application is granted and the caption shall be so modified as hereinabove set forth. 1 156207/2018 MURPHY, LORI vs. E.I. DU PONT DE NEMOURS Motion No. 001 002 005 010 2 of 14 Page 2 of 14 [* 3] INDEX NO. 156207/2018 NYSCEF DOC. NO. 238 RECEIVED NYSCEF: 06/01/2020 products and the Defendants’ wrongful conduct,” including, inter alia, intentionally concealing the “known dangers associated with the use of [] benzene-containing products and equipment for storage and use thereof,” and failing to warn the public and the Decedent of same (id. ¶¶ 28-29). All of the Defendants moved, by their respective motions, pursuant to CPLR §§ 3211 (a) (1), (5), (7) and (8) to dismiss the Complaint for lack of personal jurisdiction or, in the alternative, to dismiss the second cause of action for breach of warranty, fourth cause of action for fraud, and Plaintiff’s request for punitive damages. Reckitt later withdrew that portion of its motion that sought dismissal for lack of personal jurisdiction (NYSCEF Doc. No. 212). Defendants Savogran and Reckitt also moved to dismiss the seventh cause of action for loss of consortium, but this issue was resolved by Plaintiff’s agreement to limit the claim to recovery for the time period of Decedent’s conscious pain and suffering prior to his death (NYSCEF Doc. Nos. 129 n 2, 130 ¶ 11). Plaintiff opposes the remaining portions of all motions to dismiss, and seeks jurisdictional discovery pursuant to CPLR § 3211 (d). Standard of Review “On a motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction” (Leon v Martinez, 84 NY2d 83, 87 [1994]). When reviewing such a motion, the court must “accept the facts as alleged as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (id.). Ambiguous allegations must be resolved in the plaintiff’s favor, and the court’s review is limited to the legal sufficiency of the plaintiff’s claims (JF Capital Advisors, LLC v Lightstone Group, LLC, 25 NY3d 759, 764 [2015]). “The motion must be denied if from the pleading’s four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law” (511 West 232nd Owners Corp. v Jennifer Realty Co., 98 156207/2018 MURPHY, LORI vs. E.I. DU PONT DE NEMOURS Motion No. 001 002 005 010 3 of 14 Page 3 of 14 [* 4] INDEX NO. 156207/2018 NYSCEF DOC. NO. 238 RECEIVED NYSCEF: 06/01/2020 NY2d 144, 152 [2002] [internal citations omitted]). “Whether a plaintiff can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss” (Cortlandt Street Recovery Corp. v Bonderman, 31 NY3d 30, 38 [2018]), but a pleading consisting of “bare legal conclusions” is insufficient (Leder v Spiegel, 31 AD3d 266, 267 [1st Dept 2006]) and “the court is not required to accept factual allegations that are plainly contradicted by the documentary evidence or legal conclusions that are unsupportable based upon the undisputed facts” (Robinson v Robinson, 303 AD2d 234, 235 [1st Dept 2003]). Discussion I. Personal Jurisdiction Defendants Sherwin-Williams, PPG, BASF, and Savogran move, pursuant to CPLR § 3211 (a)(8), to dismiss the Complaint for lack of personal jurisdiction, relying chiefly on various arguments that Plaintiff has failed to plead a proper basis for personal jurisdiction. Defendants’ reliance on this position is misplaced because, as noted by the Court of Appeals, there is no requirement in the CPLR rules of pleading that a complaint allege the basis of personal jurisdiction (Fischbarg v Doucet, 9 NY3d 375, n 5 [2007], quoting Vincent C. Alexander, Practice Commentaries, McKinney’s Cons. Laws of NY, Book 7B, CPLR C302:5 [“Nowhere in the CPLR’s rules of pleading is there any requirement of an allegation of the court’s jurisdiction”]; see also Fishman v Pocono Ski Rental Inc., 82 AD2d 906, 907 [2d Dept 1981] [“There is no requirement, in New York pleading practice, that the complaint allege the basis for personal jurisdiction”]. “Rather, lack of personal jurisdiction is an affirmative defense, which must be asserted by the defendant either in a CPLR 3211 motion, or in the answer” (Fishman, 82 AD2d at 907; CPLR 3211 [e]). If a defendant moves to dismiss on the basis of lack of personal jurisdiction, the plaintiff must come forward with sufficient evidence to demonstrate jurisdiction 156207/2018 MURPHY, LORI vs. E.I. DU PONT DE NEMOURS Motion No. 001 002 005 010 4 of 14 Page 4 of 14 [* 5] INDEX NO. 156207/2018 NYSCEF DOC. NO. 238 RECEIVED NYSCEF: 06/01/2020 (Coast to Coast Energy, Inc. v Gasarch, 149 AD3d 485, 486 [1st Dept 2017]). Thus, the relevant inquiry on Defendants’ motions is not whether the plaintiff has properly pled jurisdiction, but whether there actually is a legal basis to assert personal jurisdiction over them (Fischbarg, 9 NY3d n 5).2 Where a plaintiff opposes the motion to dismiss on the grounds that jurisdictional discovery is required, as expressly permitted by CPLR 3211(d), “the opposing party need only demonstrate that facts ‘may exist’ whereby to defeat the motion” (Peterson v Spartan Industries, Inc., 33 NY2d 463, 466 [1974]; Al Rushaid v Pictet & Cie, 28 NY3d 316 n 4 [2016]; Qudsi v Larios, 173 AD3d 920, 921 [2d Dept 2019] [“If it appears that facts essential to justify the opposition may exist but cannot then be stated, a court may, in the exercise of its discretion, postpone resolution of the issue of personal jurisdiction”]). A prima facie showing of jurisdiction “simply is not required and . . . may impose undue obstacles for a plaintiff, particularly one seeking to confer jurisdiction under the ‘long arm’ statute” (id. at 467). To defeat the motion to dismiss, the plaintiff need only make a “sufficient start” to warrant the discovery and show that its position is “not frivolous” (id.). Where jurisdictional issues are likely to be complex, discovery is “desirable, indeed may be essential, and should quite probably lead to a more accurate judgment than one made solely on the basis of inconclusive preliminary affidavits” (Rushaid, 28 NY3d n 2 [quoting Peterson, 33 NY2d at 467]; Federal Ins. Co. v Specialty Paper Box Co., 222 AD2d 254 [1st Dept 1995]). In any event, the allegations that Defendants “manufactured . . . sold, distributed, marketed” benzene-containing products within the state of New York (Complaint ¶¶ 1, 5, 7-8, 11, 23, 26, 43) that were used by the Decedent in the course of his employment in New York (Complaint ¶¶ 8, 11, 26, 30-31), causing his illness and death (Complaint ¶¶ 5, 7, 8, 11, 28, 44, 52, 62, 159), are sufficient to put the Defendants on notice of the purported basis for personal jurisdiction. No heightened particularly is required (CPLR § 3016). Even an inartfully drafted complaint that nonetheless states the requisite elements of a claim is sufficient to withstand dismissal pursuant to CPLR 3211 (see 511 West 232nd Owners, 98 NY2d at 152 [“The motion must be denied if from the pleading’s four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law”]). 2 156207/2018 MURPHY, LORI vs. E.I. DU PONT DE NEMOURS Motion No. 001 002 005 010 5 of 14 Page 5 of 14 [* 6] INDEX NO. 156207/2018 NYSCEF DOC. NO. 238 RECEIVED NYSCEF: 06/01/2020 A. General Jurisdiction In New York, personal jurisdiction may be based on general jurisdiction, or specific (long-arm) jurisdiction (see CPLR 301, 302). The Complaint alleges both general and long-arm jurisdiction over the Defendants. Courts may exercise general jurisdiction over a foreign corporate defendant where the defendant is domiciled—either where it is incorporated or has its principal place of business (IMAX Corp. v The Essel Group, 154 AD3d 464, 465-466 [1st Dept 2017], or in an “exceptional case” where the defendant’s contacts with a forum “are so extensive as to support general jurisdiction notwithstanding domicile elsewhere” (id. at 466). “[A] corporate defendant’s registration to do business in New York and the designation of the Secretary of State to accept service of process in New York does not constitute consent by the corporation to submit to the general jurisdiction of New York for causes of action that are unrelated to the corporation’s affiliations with New York” (Fekah v Baker Hughes Incorporated, 176 AD3d 527, 528 [1st Dept 2019]). To determine whether a foreign corporate defendant’s affiliations with the state are so continuous and systematic as to render it an “exceptional case” essentially in New York, a court must examine both “the magnitude” of the corporation’s in-state contacts and undergo an “appraisal of a corporation’s activities in their entirety, nationwide and worldwide” (Aybar v Aybar, 169 AD3d 137, 144 [2d Dept 2019]). The goal of such an appraisal is to determine whether, in the context of all of the defendant’s activities, the defendant may be deemed “at home” in New York. None of the four Defendants that move to dismiss for lack of personal jurisdiction are domiciled in New York. Sherwin-Williams is an Ohio Corporation with its principal place of business in Ohio, PPG is a Pennsylvania corporation with its principal place of business in Pennsylvania, BASF is a Delaware corporation with its principal place of business in New 156207/2018 MURPHY, LORI vs. E.I. DU PONT DE NEMOURS Motion No. 001 002 005 010 6 of 14 Page 6 of 14 [* 7] INDEX NO. 156207/2018 NYSCEF DOC. NO. 238 RECEIVED NYSCEF: 06/01/2020 Jersey, and Savogran is a Massachusetts corporation with its principal place of business in Massachusetts. Among the various submissions before the court on the motions to dismiss, Plaintiff does not address the extent of any Defendant’s activities within New York in the context of all of its nationwide or worldwide activities; nor does Plaintiff allege that any Defendant operates exclusively or overwhelmingly within New York to the extent that they would be deemed “at home” in New York. Therefore, there is no basis to conclude on this motion that this court has general jurisdiction over Sherwin-Williams, PPG, BASF, or Savogran. B. Long-Arm Jurisdiction Plaintiff also asserts that the court may exercise long-arm jurisdiction over SherwinWilliams, PPG, BASF, and Savogran, chiefly on the basis of CPLR § 302 (a)(1). Section 302 (a)(1) authorizes the exercise of long-arm jurisdiction over any non-domiciliary defendant who transacts any business within the state or contracts anywhere to supply goods or services in the state, to the extent that the causes of action asserted in the Complaint “arise from the nonresident transacting business within the state” (Fekah, 176 AD3d at 528). The required jurisdictional inquiry is twofold—the defendant must have conducted sufficient activities to have transacted business in state, and the claims must arise from those transactions (Rushaid, 28 NY3d at 323). Even where a defendant never enters the state, jurisdiction is proper “so long as the defendant’s activities here were purposeful and there is a substantial relationship between the transaction and the claim asserted” (id.). Purposeful activities are “those with which a defendant, through volitional acts, avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws” (id.), such as “when the non-domiciliary seeks out and initiates contact with New York, solicits business in New York, and establishes a continuing relationship” (D&R Global Selections, S.L. v Bodega Olegario Falcon Pineiro, (29 156207/2018 MURPHY, LORI vs. E.I. DU PONT DE NEMOURS Motion No. 001 002 005 010 7 of 14 Page 7 of 14 [* 8] INDEX NO. 156207/2018 NYSCEF DOC. NO. 238 RECEIVED NYSCEF: 06/01/2020 NY3d 292, 298 [2017]). For the second prong of the jurisdictional inquiry, the cause of action must have an “articulable nexus” or “substantial relationship” with the defendant’s transaction of business in the state (id. at 298-299). This inquiry is “relatively permissive,” but the claim must not be “completely unmoored” from the transaction (id.). As recently as 2017, the Court of Appeals held that the sale and distribution of goods in New York state, even through a third-party vendor, may form the basis for personal jurisdiction (D&R Global, 29 NY3d at 298-299). In D&R Global, the Court found that a foreign winery had transacted business sufficient to confer personal jurisdiction where it visited New York several times to attend industry events in order to meet potential distributors for its wine and promote its wine, and entered into a distribution agreement with a New York company to import and distribute its wine within the state (id.). In reaching its conclusion, the Court determined that “not only was defendant physically present in New York on several occasions, but its activities here resulted in the purposeful creation of a continuing relationship with a New York corporation” (id.). In relevant part, Plaintiff alleges that Defendants “manufactured . . . sold, distributed, marketed” harmful benzene-containing products in New York, that were used by the Decedent in the course of his employment in New York state, causing his illness and death (Complaint ¶¶ 1, 5, 7-8, 11, 23, 26, 28, 30-31, 43-44, 52, 62, 159). This type of activity may have a substantial relationship with the Plaintiff’s claims (see Leavitt v A.O. Smith Water Products, Co., 2019 NY Slip Op. 31715[U] [Court found an articulable nexus or substantial relationship between defendant’s in-state conduct and the claims asserted where the plaintiff’s injury arose from exposure to defendant’s product which was purchased by his employer and shipped into New York by the defendant]). 156207/2018 MURPHY, LORI vs. E.I. DU PONT DE NEMOURS Motion No. 001 002 005 010 8 of 14 Page 8 of 14 [* 9] INDEX NO. 156207/2018 NYSCEF DOC. NO. 238 RECEIVED NYSCEF: 06/01/2020 In opposition to the motions to dismiss, Plaintiff submits several publicly available documents that indicate Sherwin-Williams, PPG, BASF, and Savogran each manufacture products that are widely available for sale within the state of New York, or that these defendants advertise that their products are widely available for purchase within New York (NYSCEF Doc. Nos. 104-113, 116-122, 130-136). Additionally, Plaintiff demonstrates that Sherwin-Williams has several stores throughout the state, that BASF operates a research facility in Tarrytown, New York, where it employs 177 New Yorkers who research and develop its products, that the Decedent’s employer, General Motors, utilized Sherwin-Williams, PPG, and that BASF products are used in the manufacture, sale, or repair of automobiles, and PPG marketed its products directly to General Motors (id.). Sherwin-Williams, PPG, and BASF do not refute these connections to the state or offer evidence that they do not regularly transact business within New York, instead focusing their arguments on the lack of general jurisdiction. Savogran submits the affidavit of its President, Mark Monique, which indicates, in relevant part, that all of Savogran’s officers are located in Massachusetts, Savogran is not registered to do business in New York, does not own real property, maintain a bank account, or pay property or income taxes in New York, has never designed products specifically for the New York market, employed no sales agent in New York, has no sales or marketing offices in New York, and has never directly engaged in any marketing or promotional activities in New York (Monique Aff. ¶¶ 6-15).3 Although it is clear that Sherwin-Williams, PPG, BASF, and Savogran products are widely sold or distributed in New York, and some may have sold their products directly to Decedent’s New York employer, only limited evidence regarding each Defendant’s in-state Plaintiff submits evidence that Savogran placed advertisements in New York newspapers “in the late 1950’s and 1960’s” (NYSCEF Doc. No. 136). Although these cast some doubt on Mr. Monique’s claim that Savogran has never directed advertising at New York residents, the advertisements pre-date the Decedent’s employment in New York by almost twenty years, making them irrelevant to the time frame in question. 3 156207/2018 MURPHY, LORI vs. E.I. DU PONT DE NEMOURS Motion No. 001 002 005 010 9 of 14 Page 9 of 14 [* 10] INDEX NO. 156207/2018 NYSCEF DOC. NO. 238 RECEIVED NYSCEF: 06/01/2020 activities is currently before the court. The parties to this action have yet to engage in discovery, and it is unclear whether, for example, the Defendants have contracts with New York vendors or distributors; regularly visit the state to establish or maintain relationships with vendors and distributors; whether they targeted the New York market for the sale and distribution of their products; or how their products otherwise came to be widely available in New York. This information is not before the court because Defendants have not produced it either in discovery or in support of their motions to dismiss. In light of the wide sale or distribution of SherwinWilliams, PPG, BASF, and Savogran products within the state and lack of information before the court regarding the scope of these Defendants’ in-state activities, Plaintiff has made a “sufficient start” to warrant jurisdictional discovery and show that its position is “not frivolous” (Peterson, 33 NY2d at 466; Rushaid, 28 NY3d n 4).4 II. Fraud As alternative relief, Defendants move for dismissal of the second cause of action for breach of warranty, fourth cause of action for fraud, and demand for punitive damages. Defendants move to dismiss Plaintiff’s claim for fraud on the grounds that Plaintiff has failed to allege the element of reliance, or failed to allege reliance with the requisite particularly. In order to state a claim for fraud, a plaintiff must allege (1) a misrepresentation or a material omission of fact which was false and known to be false by defendant, (2) made for the purpose of inducing the other party to rely upon it, (3) justifiable reliance of the other party on the misrepresentation or material omission, and (4) injury to the plaintiff (Pasternack v Laboratory Corp. of Am. 4 Additionally, Plaintiff asserts that the court has personal jurisdiction over Sherwin-Williams, PPG, BASF, and Savogran pursuant to CPLR § 302 (a)(3), which provides for jurisdiction over a non-domiciliary that commits a tortious act without the state causing injury to persons or property within the state. This court need not reach the merits of this argument because jurisdictional discovery is otherwise warranted, but it appears that the first three elements of the relevant test for jurisdiction under CPLR § 302 (a)(3) are present (LaMarca v Pak-Mor Mfg. Co., 95 NY2d 210, 214 [2000]) and the remaining elements are appropriate for discovery. 156207/2018 MURPHY, LORI vs. E.I. DU PONT DE NEMOURS Motion No. 001 002 005 010 10 of 14 Page 10 of 14 [* 11] INDEX NO. 156207/2018 NYSCEF DOC. NO. 238 RECEIVED NYSCEF: 06/01/2020 Holdings, 27 NY3d 817, 827 [2016]). Additionally, fraud is subject to the heightened pleading requirements of CPLR 3016 (b) and “the circumstances constituting the wrong shall be stated in detail” (Mandarin Trading Ltd. v Wildenstein, 16 NY3d 173, 178 [2011]), but the Court of Appeals has cautioned that CPLR § 3016 (b) “should not be so strictly interpreted as to prevent an otherwise valid cause of action in situations where it may be impossible to state in detail the circumstances constituting a fraud” (Pludeman v Northern Leasing Systems, Inc., 10 NY3d 486, 491 [2008]). “The language of CPLR 3016 (b) merely requires that a claim of fraud be pleaded in sufficient detail to give adequate notice” (Houbigant, Inc. v Deloitte & Touche LLP, 303 AD2d 92, 98 [1st Dept 2003]). The allegations that Defendants knew of and concealed the harmful effects of benzene from the public (Complaint ¶¶ 152-156, and passim), read in conjunction with the allegation that “Decedent . . . relied upon the fraudulent representations, misrepresentations and omissions made by the Defendants and did so to the Decedent’s detriment causing him harmful benzene exposure and injury” (Complaint ¶ 158) are sufficient to put the Defendants on notice of the alleged circumstances constituting the reliance element of the alleged fraud (Pludeman, 10 NY3d at 491; Houbigant, 303 AD2d at 98). Accordingly, Defendants’ motions to dismiss the fraud claim are denied. III. Breach of Warranty Defendants move to dismiss the breach of implied warranty claim on the grounds that Plaintiff fails to allege the necessary elements of the claim, specifically that Plaintiff has made no allegation that Defendants’ products were not fit for the ordinary purpose for which such goods were used as required by UCC § 2-314 (2)(c), and that the claim is barred, in whole or in part, by the applicable four-year statute of limitations. The UCC inquiry into whether the product in question was “fit for the ordinary purpose for which such goods are used . . . focuses on the 156207/2018 MURPHY, LORI vs. E.I. DU PONT DE NEMOURS Motion No. 001 002 005 010 11 of 14 Page 11 of 14 [* 12] INDEX NO. 156207/2018 NYSCEF DOC. NO. 238 RECEIVED NYSCEF: 06/01/2020 expectations for the performance of the product when used in the customary, usual and reasonably foreseeable manners” (Denny v Ford Motor Co., 87 NY2d 248, 258-259 [1995]). Recovery for this “strict” liability cause of action “may be had upon a showing that the product was not minimally safe for its expected purpose—without regard to the feasibility of alternative designs or the manufacturer’s ‘reasonableness’ in marketing it in that unsafe condition” (id.). Plaintiff’s allegations that Defendants’ benzene-containing products were not safe for their ordinary purpose because they were inherently defective, ultra-hazardous, dangerous, or otherwise unsafe for their ordinary purpose are sufficient to state a claim for breach of implied warranty and withstand a motion to dismiss (complaint ¶¶ 49, 50). With respect to the timeliness of the claim, it is of course true that Plaintiff’s claims are limited by the applicable statute of limitations. Plaintiff’s claims for breach of warranty are, therefore, limited to those that accrued after July 2, 2014, four years prior to the commencement of this action. IV. Punitive Damages Turning to Defendants’ motions to dismiss the demand for punitive damages, “it has long been recognized that the goal [of punitive damages] is one of deterrence, and that among torts, the deterrent value of punitive damages is most effective against frauds, and is especially appropriate when the fraud is aimed at the public generally and involves ‘high moral culpability’” (164 Mulberry Street Corp. v Columbia University, 4 AD3d 49, 60 [1st Dept 2004]). Because Plaintiff asserts a viable fraud claim that implicates a wrong perpetrated against the public, the demand for punitive damages is sufficient to withstand the motion to dismiss. Independently, Plaintiff’s claim for gross negligence, which Defendants have not moved to dismiss, also supports a demand for punitive damages (11 Essex Street Corp. v Tower Ins. Co. of 156207/2018 MURPHY, LORI vs. E.I. DU PONT DE NEMOURS Motion No. 001 002 005 010 12 of 14 Page 12 of 14 [* 13] INDEX NO. 156207/2018 NYSCEF DOC. NO. 238 RECEIVED NYSCEF: 06/01/2020 New York, 81 AD3d 516, 516 [1st Dept 2011]). Therefore, those portions of the motions that seek to dismiss the demand for punitive damages are denied. Accordingly, it is ORDERED that those branches of the motions of defendants Sherwin-Williams and PPG (Motion Seq. 001), BASF (Motion Seq. 002), and Savogran (Motion Seq. 005) to dismiss for lack of personal jurisdiction are denied, without prejudice to renew following the completion of jurisdictional discovery; and it is further ORDERED that the motions to dismiss are otherwise denied; and it is further ORDERED that Plaintiff’s application to amend the caption is granted, and the action shall bear the following caption: “---------------------------------------------------------------------------------X LAURIE MURPHY, Plaintiff, -vE.I. DU PONT DE NEMOURS & COMPANY, THE SHERWIN-WILLIAMS COMPANY, GENUINE PARTS COMPANY, d/b/a NAPA, BASF CORPORATION, Individually and as Successor in Interest to and d/b/a Glassurit and R-M company f/k/a Rinshed Mason Company, PPG INDUSTRIES, INC., PFIZER, INC., Successor-In-Interest To Wyeth, Inc., American Home Products Corporation And Boyle-Midway, RECKITT BENCKISER, INC. f/k/a Reckitt & Colman, Inc., Successor-In-Interest To Boyle-Midway, THE SAVOGRAN COMPANY, SAFETY-KLEEN SYSTEMS, INC., SHELL OIL COMPANY, UNITED STATES STEEL CORPORATION, RADIATOR SPECIALTY COMPANY, UNIVAR USA, INC. f/k/a Chemcentral Corp., And Van Waters & Rodgers, Inc., TEXACO, INC., ASHLAND, LLC. f/k/a Ashland, Inc., SUNOCO, LLC f/k/a Sonoco, Inc. (R&M), ICC CHEMICAL CORPORATION, 156207/2018 MURPHY, LORI vs. E.I. DU PONT DE NEMOURS Motion No. 001 002 005 010 13 of 14 Page 13 of 14 [* 14] INDEX NO. 156207/2018 NYSCEF DOC. NO. 238 RECEIVED NYSCEF: 06/01/2020 Defendants. ---------------------------------------------------------------------------------X”; and it is further ORDERED that a telephonic conference for the purpose of scheduling jurisdictional discovery shall be held within 30 days of the date of entry of this decision and order. This shall constitute the decision and order of the court. 5/29/2020 DATE CHECK ONE: $ LOUIS L. NOCK, J.S.C. CASE DISPOSED GRANTED X X DENIED NON-FINAL DISPOSITION GRANTED IN PART APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT 156207/2018 MURPHY, LORI vs. E.I. DU PONT DE NEMOURS Motion No. 001 002 005 010 14 of 14 OTHER REFERENCE Page 14 of 14

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