Desiena v. Algoma Hardwoods, Inc.

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2023 NY Slip Op 30685(U)

STEPHEN P DESIENA, Plaintiff, v. ALGOMA HARDWOODS, INC, AMCHEM PRODUCTS, INC., N/K/A RHONE POULENC AG COMPANY, N/K/A BAYER CROPSCIENCE INC, AMERICAN BILTRITE INC, AMERICAN HONDA MOTOR CO., INC. (AHM), BEAZER EAST, INC., F/K/A KOPPERS COMPANY INC, BIRD INCORPORATED, BURNHAM, LLC, INDIVIDUALLY, AND AS SUCCESSOR TO BURNHAM CORPORATION, COMPUDYNE CORPORATION, INDIVIDUALLY, AND AS SUCCESSOR TO YORK SHIPLEY, INC, CRANE CO, DAP, INC, DOMCO PRODUCTS TEXAS, INC, FMC CORPORATION, ON BEHALF OF ITS FORMER CHICAGO PUMP &NORTHERN PUMP BUSINESSES, FORD MOTOR COMPANY, GENERAL ELECTRIC COMPANY, GOULDS PUMPS LLC, GRINNELL LLC, HONEYWELL INTERNATIONAL, INC., F/K/A ALLIED SIGNAL, INC. / BENDIX, INTERNATIONAL PAPER COMPANY, INDIVIDUALLY AND AS SUCCESSOR TO CHAMPION INTERNATIONAL CORPORATION, AS SUCCESSOR TO UNITED STATES PLYWOOD CORPORATION, ITT LLC., INDIVIDUALLY AND AS SUCCESSOR TO BELL &GOSSETT ANDAS SUCCESSOR TO KENNEDY VALVE MANUFACTURING CO., INC, KARNAK CORPORATION, MANNINGTON MILLS, INC, MORSE TEC LLC, NISSAN NORTH AMERICA, INC, PEERLESS INDUSTRIES, INC, PFIZER, INC (PFIZER), PNEUMO ABEX LLC,SUCCESSOR IN INTEREST TO ABEX CORPORATION (ABEX), SLANT/FIN CORPORATION, TACO, INC, TOYOTA MOTOR SALES U.S.A ., 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, WEYERHAEUSER COMPANY, Defendant.

Index No. 190032/2020, Motion Seq. No. 003

Supreme Court, New York County

March 7, 2023

Unpublished Opinion

MOTION DATE 12/06/2022

DECISION + ORDER ON MOTION

ADAM SILVERA, JUSTICE

The following e-filed documents, listed by NYSCEF document number (Motion 003) 129, 130, 131, 132, 133, 134, 135, 136, 137 138, 139, 140, 141, 142, 143, 144, 145, 146, 147, 148, 149 150, 151, 152, 153 156. 159, 160, 161, 162, 163, 164, 165, 166, 167, 168, 169 170, 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 were read on this motion to/for JUDGMENT - SUMMARY.

Upon the foregoing documents, it is ordered that defendant Bumham LLC's motion for partial summary judgment to dismiss plaintiff s complaint is hereby denied for the reasons set forth below. Preliminarily, the Court notes that the Notice of Motion seeks summary judgment dismissing all claims against defendant Bumham. However, the moving papers, as well as defendant Bumham's reply papers, seek only partial summary judgment on the issue of punitive damages. As such, the Court is treating the instant motion as a motion for partial summary judgment as to punitive damages.

Here, defendant Bumham moves for summary judgment arguing that plaintiff has failed to establish that moving defendants' conduct rises to the level of egregious and morally culpable conduct necessary for an award of punitive damages. According to defendant Bumham. any exposure to asbestos by plaintiff through Bumham boilers were below the regulated threshold limits and permissible exposure limits (hereinafter referred to as "PEL''). In support of its motion, defendant Bumham relies upon a study conducted by William E. Longo, Ph.D in 2007 (hereinafter referred to as the "Longo study"), arguing that plaintiff s exposure to asbestos was below the Occupational Safety and Health Act's PEL. As such, defendant Bumham 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. Moving defendant replies.

During his deposition, plaintiff testified that he worked as a mechanic helper and carpenter throughout his career from 1978 to 1989. Plaintiff further testified that he was exposed to asbestos through Bumham boilers on 22 to 55 occasions while in the presence of workers on site performing work on the Burnham boilers. Plaintiff alleges that he worked within 5-15 feet of the workers who demolished and installed the Burnham boilers, and that such work released asbestos dust from the boilers. Plaintiff specifically testified that he was able to identify Bumham 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 of law. See Alvarez v Prospect Hosp., 68 N Y2d 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. 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 ail in the evidence. See Ugarriza v Schmieder, 46 N.Y.2d 471,475-476 (1979).

In toxic tort cases, the New York Court of Appeals has adopted a gross negligence standard for...