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

Carrier v A.O. Smith Water Prods. Co. 2024 NY Slip Op 30934(U) March 20, 2024 Supreme Court, New York County Docket Number: Index No. 190391/2018 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. 190391/2018 NYSCEF DOC. NO. 427 RECEIVED NYSCEF: 03/20/2024

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. ADAM SILVERA PART 13 Justice --------------------------------------------------X INDEX NO. 190391/2018 LUCIA CARRIER, AS EXECUTRIX FOR THE ESTATE OF MOTION DATE 07/06/2023 PETER R. CARRIER, Plaintiff, MOTION SEQ. NO. 004 -v- A.O. SMITH WATER PRODUCTS CO,AMCHEM PRODUCTS, INC.,AMERICAN BILTRITE INC.,BURNHAM, LLC,BW/IP, INC. AND ITS WHOLLY OWNED SUBSIDIARIES, CARRIER CORP., CERTAINTEED CORP., CLEAVER BROOKS CO., INC, COLUMBIA BOILER COMPANY OF POTTSTOWN, COMPUDYNE CORP.N, CRANE CO., CROSBY VALVE LLC, CROWN BOILER CO., OAP, INC, DOMCO PRODUCTS TEXAS, INC, FLOWSERVE US, INC.,FMC CORP., FORT KENT HOLDINGS, INC.,FULTON BOILER WORKS, INC, GARDNER DENVER, INC, GENERAL ELECTRIC CO., DECISION + ORDER ON GOULDS PUMPS LLC,GRINNELL LLC,IMO INDUSTRIES, INC, ITT INDUSTRIES, INC.,ITT LLC., KEELER-DORR- MOTION OLIVER BOILER CO., KOHLER CO, LENNOX INDUSTRIES, INC, OWENS-ILLINOIS, INC, PEERLESS INDUSTRIES, INC, PFIZER, INC. (PFIZER), RHEEM MANUFACTURING CO., ROPER PUMP CO., SUPERIOR BOILER WORKS, INC, U.S. RUBBER CO. (UNIROYAL), UNION CARBIDE CORP., UTICA BOILERS,INC,VELAN VALVE CORP,WARREN PUMPS, LLC, WEIL-MCLAIN, A DIVISION OF THE MARLEY-WYLAIN COMPANY, KAISER GYPSUM COMPANY, INC.,

Defendant. ·------------------------------------------------X

The following e-filed documents, listed by NYSCEF document number (Motion 004) 359, 360, 361, 362, 363,364,365,366,367,368,369,370,371,372,373,374,375,376,377,378,379,380,381,382,383, 384,385,386,387,388,389,390,391,392,393,394,395,396,397,398,399,400,401,402,403,404, 405,406,407,408,409,410,411,412,413,414,415,416 were read on this motion to/for JUDGMENT - SUMMARY

Upon the foregoing documents, it is ordered that the instant motion for partial summary

judgment seeking dismissal of plaintiff's claim for punitive damages, pursuant to CPLR § 3212,

is denied for the reasons set forth below.

Here, defendant Burnham, LLC ("Burnham") moves for partial summary judgment to

dismiss plaintiffs punitive damages claim on the basis that asbestos exposure from Burnham

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INDEX NO. 190391/2018 NYSCEF DOC. NO. 427 RECEIVED NYSCEF: 03/20/2024

INDEX NO. 190391/2018 NYSCEF DOC. NO. 427 RECEIVED NYSCEF: 03/20/2024

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. C'o. v Am. Home Products Corp., 75 NY2d 196, 204 (1990) (internal 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. 8, excerpts from the Tr. of Mr. Sweigart from theAssenzio trial group, dated June 19, 2013,

p. 2778, ln. 14-16. Mr. Sweigart answered "[t]hat's correct." Id. at ln. 20. As such, defendant

Burnham has failed to demonstrate their prima facie burden that punitive damages are not

warranted herein. As a reasonable juror could find that defendant Burnham's knowledge and use

of asbestos in their boilers constituted a prioritization of their corporate benefits over plaintiffs

safety, issues of fact exist to preclude summary judgment on punitive damages.

Accordingly, it is

ORDERED that defendant Burnham's motion for partial summary judgment is denied in

its entirety; and it is further

ORDERED that within 30 days of entry plaintiff shall serve all parties with a copy of this

Decision/Order with notice of entry.

This constitutes the Decision/Order of the Court.

3/20/2024 DATE ADAM SILVERA, J.S.C.

~ CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION

GRANTED 0 DENIED GRANTED IN PART □ OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER

CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE

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Footnotes

[1] of 4 [* 1] boilers would fall below TLV or PEL/OSHA limits and per Burnham's lack of workers' compensation claims for asbestos-related disease. See Memorandum of Law in Support of Defendant's Burnham, LLC's, Motion for Partial Summary Judgment, p. 9-11. The Court notes that 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 Pro.,pect 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 of law, tendering sufficient evidence to eliminate any material issues of fact from the case". fVinegrad v 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 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 ('ity o/New 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] (1st Dep't 1992), citing Daumcm Displays, Inc. v 1Haswr::o, 168 AD2d 204 (1st Dep't 1990). The court's role is "issue-finding, rather than issue-determination". S'i!lman 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 l' Schmieder, 46 NY2d 471, 475-476 (1979). Furthermore, the Appellate Division, First Department has held that on a motion for summary judgment, it is moving defendant's burden "to unequivocally establish that its product could not have contributed to the causation of plaintiffs injury". Reid v Georgia-Pacific C'orp., 212 AD2d 462,463 (1st Dep't 1995). 190391/2018 CARRIER, PETER vs. A.O. SMITH WATER PRODUCTS CO Page 2 of 4 Motion No. 004 2 of 4 [* 2] Defendant Burnham has plainly not met their burden at summary judgment. The TL V/OSHA standards have little bearing on plaintiffs unequivocal and consistent testimony regarding his work with Burnham boilers and his specific asbestos exposure therein. See Affirmation in Opposition to Burnham's Motion for Partial Summary Judment [sic], p. 4-5. Similarly, the lack of compensation claims from Burnham's employees are wholly irrelevant to moving defendant's conduct as manufacturers of asbestos-containing boilers. Plaintiff correctly argues that the single study conducted by William E. Longo, PhD in 2007 is insufficient to support partial summary judgment on the issue of punitive damages herein. In his deposition, Dr. Longo concedes that he never conducted any studies on a Burnham boiler. See id., Exh. 7, Deposition Transcript of William E. Longo, PhD, dated December 16, 2015, p. 36, ln. 10-12. In Dyer v Amchem Products, Inc., 207 AD3D 408,411 (1st 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 Burnham's boilers. Thus, defendant Burnham has failed to proffer sufficient evidence to establish entitlement to summary judgment. Furthermore, plaintiff has provided evidence sufficient to raise questions of fact as to defendant Burnham's prior knowledge of and participation in the use of asbestos-containing boiler parts. See Affirmation in Opposition, supra, p. 8-11. 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 190391/2018 CARRIER, PETER vs. A.O. SMITH WATER PRODUCTS CO Page 3 of4 Motion No. 004 3 of 4 [* 3]