Burns v A.O. Smith Water Prods. Co.

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Burns v A.O. Smith Water Prods. Co. 2023 NY Slip Op 33173(U) September 12, 2023 Supreme Court, New York County Docket Number: Index No. 190016/2019 Judge: Adam Silvera 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. INDEX NO. 190016/2019 NYSCEF DOC. NO. 150 RECEIVED NYSCEF: 09/13/2023 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: PART HON. ADAM SILVERA 13 Justice --------------------X INDEX NO. KEVIN BURNS, MOTION DATE Plaintiff, MOTION SEQ. NO. 190016/2019 12/13/2022 001 - V - A.O. SMITH WATER PRODUCTS CO, AMCHEM PRODUCTS, INC.,ATWOOD & MORRILL COMPANY, BURNHAM, LLC,BW/IP, INC. AND ITS WHOLLY OWNED SUBSIDIARIES, CARRIER CORPORATION, CERTAINTEED CORPORATION, CLEAVER BROOKS COMPANY, INC, COMPUDYNE CORPORATION, CRANE CO., ECR INTERNATIONAL, CORP., FLOWSERVE US, INC.,FORT KENT HOLDINGS, INC.,GARDNER DENVER, INC, GENERAL ELECTRIC COMPANY, GOULDS PUMPS LLC,IMO INDUSTRIES, INC, ITT LLC, LENNOX INDUSTRIES, INC, PEERLESS INDUSTRIES, INC, PFIZER, INC. (PFIZER}, RHEEM MANUFACTURING COMPANY, SLANT/FIN CORPORATION, SPIRAX SARCO, INC.,SUPERIOR BOILER WORKS, INC, U.S. RUBBER COMPANY (UNIROYAL), UNION CARBIDE CORPORATION, UTICA BOILERS, INC.,WEIL-MCLAIN, A DIVISION OF THE MARLEY-WYLAIN COMPANY, DECISION + ORDER ON MOTION Defendant. --------------------X The following e-filed documents, listed by NYSCEF document number (Motion 001) 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109,110,111,112,113,114,115,116,117,118,119,120,121,122,123,124,125,126,127,128,129, 130,131,132,133,134,135,136,137 were read on this motion to/for JUDGMENT-SUMMARY Upon the foregoing documents, it is ordered that defendant Burnham LLC's motion for partial summary judgment to dismiss plaintiffs complaint is hereby denied for the reasons set forth below. Here, defendant Burnham moves for summary judgment arguing that plaintiff has failed to establish that moving defendants' conduct rises to the level of egregious and morally culpable ' I ' [* 1] 190016/2019 BURNS. DONALD V vs. A.O. SMITH WATER PRODUCTS CO Motion No. 001 1 of 5 Page 1 of 5 INDEX NO. 190016/2019 NYSCEF DOC. NO. 150 RECEIVED NYSCEF: 09/13/2023 conduct necessary for an award of punitive damages. According to defendant Burnham, any exposure to asbestos by plaintiff through Burnham boilers were below the regulated threshold limits and permissible exposure limits (hereinafter referred to as "PEL"). In support of its motion, defendant Burnham relies upon a study conducted by William E. Longo, Ph.D in 2007 (hereinafter referred to as the "Longo study"), arguing that plaintiffs exposure to asbestos was below the Occupational Safety and Health Act's PEL. As such, defendant Burnham contends that its failure to warn does not rise to reckless and wanton disregard to support a claim for punitive damages. Plaintiff opposes the instant motion arguing, inter alia, that the Longo study is insufficient to meet defendant Burnham's initial burden on summary judgment. No reply was filed. During his deposition, plaintiff testified that he worked as a plumber throughout his and that he was exposed to asbestos through Burnham boilers-during the removal and installation of hundreds of Burnham boilers between approximately 1958 and the early l 980s. Plaintiff alleges that he was exposed to asbestos insulation and rope during his work with Burnham boilers, that his work on such boilers released visible dust, and that he inhaled such dust. Plaintiff specifically testified that he was able to identify Burnham boilers as it was labeled on the boiler itself. The standards of summary judgment are well settled. 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 oflaw. See Alvarez v Prospect Hosp., 68 NY2d 320,324 (1986). "The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter oflaw, tendering sufficient evidence to eliminate any material issues of fact from the case". Winegradv New York University Medical Center, 64 NY2d 851,853 (1985). Despite the sufficiency of the opposing papers, the failure to make such a showing requires 190016/2019 BURNS, DONALD I/ vs. A.O. SMITH WATER PRODUCTS CO Motion No. 001 [* 2] 2 of 5 Page 2 of5 INDEX NO. 190016/2019 NYSCEF DOC. NO. 150 RECEIVED NYSCEF: 09/13/2023 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 NY2d 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 JC Duggan, Inc., 180 AD2d 579, 580 (1'1 Dep't1992), citing Dauman Displays, Inc. v Masturzo, 168 AD2d 204 (I st Dep't 1990). The court's role is "issue-finding, rather than issuedetermination". Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 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 NY2d 471, 475-476 (1979). 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 £lee. Corp., 89 NY2d 955, 956-957 (l 997)(intemal 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 of9J st St. Crane Collapse Litig., 154 AD3d 139, 156 (1 st Dep't 2017)(intemal parentheses omitted). Plaintiff correctly argues that the single study conducted by Dr. Longo is insufficient to support partial summary judgment on the issue of punitive damages herein. In his deposition, Dr. 19001612019 BURNS, DONALD V vs. A.O. SMITH WATER PRODUCTS CO Motion No. 001 [* 3] 3 of 5 Page 3 of 5 INDEX NO. 190016/2019 NYSCEF DOC. NO. 150 RECEIVED NYSCEF: 09/13/2023 Longo concedes that he never conducted any studies on a Burnham boiler. See Affirmation in Opposition to Burnham's Motion for Partial Summary Judgment, Exh. 6, Depo. Tr. of William E. Longo, Ph.D., dated December 16, 2015, p. 36, In. 10-12. In Dryer v Amchem Products Inc., 207 AD3d 408, 411 (1 st 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 Burnham has failed to proffer sufficient evidence to establish entitlement to summary judgment. 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 AD2d 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 NY2d 196, 204 (l 990)(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 Burnham, Mr. Sweigart, was asked whether it was correct that "Burnham, never ... put a warning regarding hazards of asbestos on any of its boilers". Affirmation in Opposition, supra, Exh. 7, 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]hat's correct." Id. at In. 20. As such, defendant 19001612019 BURNS, DONALD V vs. A.O. SMITH WATER PRODUCTS CO Motion No. 001 [* 4] 4 of 5 Page 4 of 5 INDEX NO. 190016/2019 NYSCEF DOC. NO. 150 RECEIVED NYSCEF: 09/13/2023 Burnham has failed to demonstrate their prima facie burden that punitive damages are not warranted herein. Thus, defendant Burnham's motion is denied. Accordingly, it is ORDERED that defendant Bumham's motion for partial summary judgment to dismiss 1 plaintiffs claim for punitive damages 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 defendants with notice of entry. This constitutes the Decision/Order of the Court. 9/12/2023 ADAM SILVERA, J.S.C. DATE CHECK ONE: APPL~CATION: CHECK IF APPROPRIATE: ~ CASE DISPOSED GRANTED 0 ~ DENIED, NON~FtNAL DfSPOSfflON GRANTED IN PART SETTLE ORDER SUBMIT ORDER INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT 190016/2019 BURNS, DONALD V vs, A.O; SMITH WATER PRODUCTS CO Motion No. 001 [* 5] 5 of 5 OTHER REFERENCE Page 5 of 5

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