Malerba v. N.Y.C. Transit Auth.

2024 NY Slip Op 04344

Peter Malerba et al., Respondents, v. New York City Transit Authority et al., Defendant-Respondents, E.A. Technologies/Petrocelli J.., LLC, Defendant, Ansul, Inc. et al., Defendants-Appellants. Tyco Fire Products, LP Initially Sued Herein as Ansul Incorporated et al., Third-Party Plaintiffs-Appellants, v. Ameron Global, Inc., Doing Business as Ameron Global Product Support, Third-Party Defendant-Respondent.

Appeal No. 1790, Index Nos. 113520/09, 590461/12, Case No. 2023-04665

Supreme Court of New York, First Department

August 29, 2024

Anil C Singh

David Friedman Julio Rodriguez III John R. Higgitt LlinÉt M Rosado

Defendant Tyco Fire Products LP (Tyco) appeals from an order of the Supreme Court, New York County (Suzanne J. Adams, J.) entered on or about September 11, 2023, which denied its motion for summary judgment dismissing plaintiffs' claims and any counterclaims or cross-claims against it.

Calinoff & Katz, LLP, New York (Robert A. Calinoff of counsel), and Williams & Connolly, Washington, DC (James W. Kirkpatrick of the bars of the District of Columbia and the State of Missouri admitted pro hac vice, of counsel), for appellants.

Weitz & Luxenberg, P.C., New York (Alani Golanski and Nicholas Wise of counsel), for Peter Malerba and Janet Malerba, respondents.

Anna J. Ervolina, Brooklyn (Yolanda L. Ayala of counsel), for New York City Transit Authority and Metropolitan Transit Authority (MTA), respondents.

London Fischer LLP, New York (Brian A. Kalman of counsel) for Ameron Global, Inc., respondent.

RODRIGUEZ, J.

The main issue in the present appeal is whether the federal Hazardous Materials Transportation Act (HMTA) preempts plaintiffs' claims sounding in defective design and failure to warn. Since the HMTA's express preemption provision encompasses state law claims "about" "the designing, manufacturing, fabricating, inspecting, marking, maintaining, reconditioning, repairing, or testing [of] a package, container, or packaging component that is represented, marked, certified, or sold as qualified for use in transporting hazardous material in commerce" (49 USC § 5125 [b] [1] [E]), plaintiffs' claims against defendant Tyco Fire Products, LP (i/s/h/a Ansul, Inc. and Tyco International, Ltd.) (collectively, Tyco) are preempted. Accordingly, Tyco's motion for summary judgment should have been granted, and the complaint dismissed as against it.

I.

Plaintiff Peter Malerba was injured during the course of his employment for third-party defendant Ameron Global, Inc. As relevant here, Ameron was responsible for performing maintenance on compressed gas tanks from the fire suppression system of defendants New York City Transit Authority and Metropolitan Transit Authority (collectively, the Transit Authority). Ameron performed this work pursuant to an unwritten agreement with the Transit Authority's contractor, defendants E.A. Technologies, Inc., E.A. Technologies/Petrocelli, and E.A. Technologies/Petrocelli, J.V., LLC (collectively, EA Tech). The cylinder and valve of the compressed gas tank at issue were manufactured by Tyco. As plaintiff worked with the compressed gas tank, it suddenly actuated and struck him, causing severe injuries.

Plaintiffs' amended complaint, which brings direct and derivative claims, asserts five causes of action. The first cause of action, against all defendants, sounds in general and aggravated negligence, including a request for punitive damages. Plaintiff's second cause of action, against Tyco and EA Tech, alleges breach of express warranties that "the fire suppression tanks described[] were safe, effective, fit, capable and proper for the use and purpose for which they were designed, manufactured and marketed." The third cause of action, against Tyco and EA Tech, alleges breach of implied warranties of "merchantab[ility] pursuant to UCC 2-314 and fit[ness] for the particular purpose for which it was sold pursuant to UCC 2-3 [sic]." As the last direct claim, the fourth cause of action asserts that defendants Tyco and EA Tech are strictly liable based on the "fire suppression tanks[']... defective[ness]." The fifth cause of action, on behalf of plaintiff's wife, is a derivative claim for loss of consortium.

In plaintiffs' response to Tyco's interrogatories, plaintiffs alleged, among other things, that the damages suffered were caused by Tyco's negligence in "the design [and] manufacture... of the subject fire suppression tank and component parts;... in failing to provide instructions and warnings with/for the use of, service, repair and maintenance of the subject fire suppression tank;... [and] [i]n selling and putting into use the subject fire suppression tank with manufacturing flaws, design defects and no and/or inadequate warnings." In addition, plaintiffs alleged that Tyco "s[old] [and] distribut[ed]... said product with a lack of proper, necessary and appropriate safe guards and warnings."

Following discovery and filing of the note of issue, Tyco moved for summary judgment to dismiss the complaint in its entirety, arguing that plaintiffs' claims were preempted by the HMTA, Tyco breached no duty, Tyco's alleged acts did not cause plaintiff's accident, and plaintiffs' "breach-of-warranty claim" was time-barred.

In opposition to Tyco's motion for summary judgment, plaintiffs argued that the motion should be denied with respect to their negligence and strict liability claims based on defective design and inadequate warnings. First, plaintiffs contended that their claims were not preempted since plaintiff was "akin to an end user," the activity at issue was removed from transportation, "the HMTA does not apply to the subject tank at all and definitely not to the valve assembly," and Tyco waived the defense by raising it for the first time after filing of the note of issue. As to the allegedly inadequate warnings, plaintiffs argued that the valve assembly should have warned of the danger presented by accidental actuation and the absence of safety caps. With respect to the design, plaintiffs argued that the valve should have been more recessed, that a "flimsy rivet" was an insufficient connection for the safety caps, and that the tank did not have a lift ring for handling. Plaintiffs acknowledged, however, that Tyco's motion should be granted with respect to their "[b]reach of [w]arranty [c]laim."

Ameron and the Transit Authority separately opposed Tyco's motion as well. They argued that Tyco waived its preemption, subsequent modification, and unforeseeable misuse defenses because the defenses were raised for the first time after the note of issue. They further contended that the HMTA does not preempt the claims and that Tyco failed to demonstrate that it did not defectively or negligently design the valve.

In reply, Tyco responded regarding preemption, duty and breach, and causation, and further noted plaintiffs' acknowledgment regarding their "breach-of-warranty claim." Additionally, it argued that the defenses were not waived as they were not required to be affirmatively pleaded under CPLR 3018 (b). Moreover, assuming the defenses had been waived, the waiver was properly "retracted" by motion to amend its answer and, in any event, alternative remedies (besides denial of summary judgment) were available to address potential prejudice while allowing the parties an opportunity to litigate the merits.

Notwithstanding plaintiffs' concession regarding the alleged breach of warranty, Supreme Court denied the motion in its entirety. In a brief decision, Supreme Court held, in pertinent part:

"Viewing the evidence in a light most favorable to the non-moving parties, summary judgment must be denied. There are significant questions of fact that can only be resolved by the trier thereof, including (but not limited to) the HMTA's applicability to the tank at issue, the extent of Tyco's duty to warn, and whether Tyco's design of the tank/valve was defective (especially in light of its competitors' design)."

II.

A.

On appeal, Tyco maintains that plaintiffs' claims are preempted. Specifically, Tyco argues that the plain language of the HMTA's broad express preemption provision (49 USC § 5125 [b]) applies to bar plaintiffs' claims for negligence and strict liability based on defective design and inadequate warnings, which are claims both (1) "about" a proscribed subject area and (2) not "substantively the same" as federal law. In addition, Tyco contends that Supreme Court erred in finding that questions of fact prevented a determination on preemption, as preemption is a pure question of law. Tyco further argues that, because the safety caps would have prevented the accident, a third-party's removal of the caps precludes a finding of causation as a matter of law. Finally, Tyco notes that Supreme Court failed to dismiss plaintiffs' "breach of warranty claim" even though it was conceded.

Plaintiffs argue that their claims are not preempted because the U.S. Department of Transportation (DOT)-the agency tasked with implementing and enforcing the HMTA-did not evaluate, and its certification stamp did not reach or approve, the valve assembly that allegedly caused the accident. Additionally, even assuming the HMTA applies, plaintiffs' "labeling" claim, based on their allegation that there should have been a label indicating that safety caps were always required to be attached, should survive. Plaintiffs further argue, apart from the preemption issue, that Supreme Court properly denied summary judgment on the defective design and inadequate warning claims, as the record raises questions of fact.

The Transit Authority argues that Tyco's non-preemption defenses were waived and that, even assuming the defenses were not waived, the record supports Supreme Court's denial of...