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

Arana v A.O. Smith Water Prods. Co. (2022 NY Slip Op 06542) Arana v A.O. Smith Water Prods. Co. 2022 NY Slip Op 06542 Decided on November 17, 2022 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided and Entered: November 17, 2022 Before: Kern, J.P., Scarpulla, Rodriguez, Pitt, Higgitt, JJ. Index No. 190261/19 Appeal No. 16681 Case No. 2021-04739 [*1]Victor Arana, as Administrator for the Estate of Gloria M. Maryn, Plaintiff-Respondent, v A.O. Smith Water Products Co., et al., Defendants, J-M Manufacturing Company, Inc., Defendant-Appellant. Manning Gross + Massenburg, LLP, New York (Anna Hwang of counsel), for appellant. Weitz & Luxenberg, P.C., New York (Jason P. Weinstein of counsel), for respondent. Order, Supreme Court, New York County (Adam Silvera, J.), entered on or about October 8, 2021, which, to the extent appealed from, denied the motion of defendant J-M Manufacturing Company (JMM) for summary judgment dismissing the complaint as against it, unanimously modified, on the law, to dismiss plaintiff's punitive damages demand, and otherwise affirmed, without costs. Defendant is a former distributor of asbestos cement pipe (ACP). Plaintiff Arana, a plumber's laborer, alleges that he worked with ACP distributed by JMM and that his mother, Gloria M. Maryn, was secondarily exposed to asbestos-containing dust while she laundered his clothes. Questions of fact and credibility exist as to whether plaintiff Arana worked with ACP distributed by JMM (see Comeau v W.R. Grace & Co.-Conn., 216 AD2d 79, 80 [1st Dept 1995]; see also Matter of New York City Asbestos Litig., 7 AD3d 285 [1st Dept 2004]; Dollas v Grace & Co., 225 AD2d 319 [1st Dept 1996]). There is insufficient evidence, however, to support plaintiff's punitive damages demand. "Even where there is gross negligence, punitive damages are awarded only in 'singularly rare cases' such as cases involving an improper state of mind or malice or cases involving wrongdoing to the public" (Anonymous v Streitferdt, 172 AD2d 440, 441 [1st Dept 1991], quoting Rand & Paseka Mfg. Co. v Holmes Protection, 130 AD2d 429, 431 [1st Dept 1987], lv denied 70 NY2d 615 [1988]). This is not such a singularly rare case (see Matter of New York City Asbestos Litig., 225 AD2d 414, 415 [1st Dept 1996], affd 89 NY2d 955 [1997]; see also Matter of Eighth Jud. Dist. Asbestos Litig., 92 AD3d 1259 [4th Dept 2012], lv denied 19 NY3d 803 [2012]). There is no evidence of a concerted effort to suppress information about the dangers of asbestos. To the contrary, the product came with multiple warnings that it could not safely be worked with using dry saws or the like. To the extent those warnings were not present on each piece of pipe may evidence negligence, it does not evidence malice (compare Matter of 91st St. Crane Collapse Litig., 154 AD3d 139 [1st Dept 2017]). THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: November 17, 2022