Adam Silvera, Judge
Unpublished Opinion
PRESENT: HON. ADAM SILVERA Justice
DECISION + ORDER ON MOTION
Adam Silvera, Judge
The following e-filed documents, listed by NYSCEF document number (Motion 002) 282, 283, 284, 285, 286, 287, 288, 289, 290, 291, 292, 293, 294, 295, 296, 297, 298, 299, 300, 301, 302, 303, 304, 305, 306, 308, 325, 326, 327, 328, 329, 330, 331, 332, 333, 334, 335, 336, 337, 338, 339, 340, 341, 342, 343, 344, 345, 346, 347, 348, 349, 350, 351, 352, 353, 354, 355, 356, 357, 358, 359, 360, 361, 362, 363 were read on this motion to/for DISMISSAL.
Upon the foregoing documents, it is hereby ordered that Defendant Bumham LLC's (hereinafter referred to as "'Bumham") motion for summary judgment is denied for the reasons set forth below.
Both individually and as administratrix for the estate of decedent Mr. James Scheriff, plaintiff Roberta Gartner seeks compensation against Bumham, premised upon decedent's alleged exposure to asbestos as a result of his work on Bumham's boilers. Decedent was diagnosed with Mesothelioma on October 8, 2019, and subsequently passed away from his illness on June 22, 2020. Prior to his death, decedent testified at his deposition that he worked as a plumber and helper for James Simpson Plumbing &Heating in the 1970s, and as a HVAC worker for the Metropolitan Transit Agency in the 1980s. Decedent testified that he installed, removed, and maintained Bumham boilers throughout his career as a plumber. Decedent further testified that visible dust would come from the jacket of Bumham boilers in which he was exposed. Plaintiff argues, inter alia, that Bumham failed to place a warning on their boilers even after obtaining the knowledge of the harmful and dangerous effects when exposed to asbestos warranting the imposition of punitive damages. Conversely, Bumham argues that any asbestos exposure from Plaintiffs work on Burnham boilers was significantly below threshold limit values and exposure limits set by the standards and regulations of the Occupational Safety and Health Act (hereinafter referred to as "OSHA"). Bumham moves for partial summary judgment on the issue of punitive damages. Plaintiff opposes, and Bumham replies.
Pursuant to CPLR 3212(b), a motion for summary judgment, "shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party." "[T]he 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 demonstrate the absence of any material issues of fact. This burden is a heavy one and on a motion for summary judgment, facts must be viewed in the light most favorable to the non-moving party. If the moving party meets this burden, the burden then shifts to the non-moving party to establish the existence of material issues of fact which require a trial of the action". Jacobsen v New York City Health and Hosps. Corp., 22 N.Y.3d 824, 833 (2014) (internal citations and quotations omitted). "The moving party's '[failure to make [a] prima facie showing [of entitlement to summary judgment] requires a denial of the motion, regardless of the sufficiency of the opposing papers'". Vega v Restani Constr. Corp., 18 N.Y.3d 499, 503 (2012) (internal emphasis omitted).
In support of their motion, Bumham contends that Plaintiff cannot identify evidence to justify the imposition of punitive damages and that such damages are not warranted under New York Law. See Memorandum Of Law In Support Of Defendant Bumham LLC's Motion For Partial Summary Judgment, p. 9. Bumham relies upon a study conducted by Dr. William E. Longo, a microscopist, arguing that Plaintiffs exposure to asbestos was below OSHA's permissible exposure limit (hereinafter referred to as "PEL"). As such, Burnham contends that Bumham's failure to warn does not rise to reckless and wanton disregard to support a claim for punitive damages. Conversely, Plaintiff argues that "Bumham's attempted reliance on the one isolated study by a microscopist, coupled with its misuse and misrepresentations.. . demonstrate the [lack of merit in the] present motion." Affirmation In Opposition To Bumham's Motion For Partial Summary Judgment, p. 8, ¶ 14.
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 Elec. Corp., 89 N.Y.2d 955, 956-957 (1997) (internal 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 of 91st St. Crane Collapse Litig., 154 A.D.3d 139, 156 (1st Dept 2017) (internal parentheses omitted).
In the case at bar, the single study conducted by Dr. Longo does not support a finding for partial summary judgment on the issue of punitive damages. In his deposition testimony, Dr. Longo concedes that he never conducted any studies on a Bumham boiler. See Affirmation In Opposition, supra, Exh. 4, Depo. Tr. of William E. Longo, PH.D., dated December 16, 2015, p. 36, In. 10-12. Further, Dr. Longo does not rely upon any information regarding Bumham boilers, as Dr. Longo testified that he relies on the mixing and removal of materials which cause significant exposure. See Id at p. 37, In. 14-17. "A court's function on a motion for summary judgment involves issue finding rather than issue determination". Farias v Simon, 122 A.D.3d 466, 468 (1st Dept 2014). Here, the Court need only determine whether a genuine issue of material fact exists as to whether Bumham's conduct rises to the level of wanton disregard for punitive damages to be imposed.
Further, the Appellate Division, First Department, has previously held "that. . . compliance with a statute may constitute some evidence of due care". Lugo v UN Toys, Ltd., 146 A.D.2d 168, 170 (1st Dept 1989). Thus, evidence of compliance with the OSHA PEL maybe used to support the argument that punitive damages should not be imposed. However, as the Appellate Division, First Department, found in Lugo, "compliance with a statute. . . does not preclude a finding of negligence." Id. In the case at bar, Dr. Longo's study cannot unambiguously establish that Plaintiffs asbestos exposure was below OSHA's PEL. As such, Dr. Longo's study which infers Plaintiffs exposure was below OSHA's PEL does not refute that Burnham may have acted with wanton disregard by failing to warn Plaintiff of the ultra-carcinogenic hazards of asbestos.
In addition, Bumham argues that according to the Appellate Division, First Department's decision in Maltese, supra, punitive damages are not appropriate when the claim rests upon an alleged failure to warn. However, the New York Court of Appeals has 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 N.Y.2d 196, 204 (1990) (internal citations omitted). This Court further notes that where a Plaintiff provides evidentiary facts tending to show that defendant's warnings were deficient, the adequacy of such warnings are a factual question that should be resolved by a jury. See Eiser v Feldman, 123 A.D.2d 583, 584 (1986). Plaintiff has proffered evidence that demonstrates Bumham failed to warn Plaintiff of the hazards of asbestos. During the direct testimony of the corporate representative of Bumham, Mr. Sweigart, was asked whether it was correct that "Bumham never. . . put a warning regarding the hazards of asbestos on any of its boilers". Affirmation In Opposition, supra, Exh. 5, excerpts from the Tr. oof Mr. Sweigart from the Assezgio trial group, dated June 19, 2013, p. 2778, In. 14 - 16. Mr. Sweigart answered "[t]haf s correct." Id. at In. 20. As such. Bumham has failed to demonstrate their prima facie burden that punitive damages are not warranted herein.
Accordingly, it is
ORDERED that Defendant Bumham LLC's motion for partial summary judgment is hereby denied in its entirety: and it is further
ORDERED that, within 21 days of entry, plaintiffs shall serve a copy of this decision/order upon all parties, together with notice of entry.
This constitutes the decision / order of the Court