Smith v Ashland, Inc 2024 NY Slip Op 31116(U) April 3, 2024 Supreme Court, New York County Docket Number: Index No. 156780/2017 Judge: Lynn R. Kotler 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. 156780/2017 NYSCEF DOC. NO. 1217 RECEIVED NYSCEF: 04/03/2024
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 8 - - --------------------------------x SANDRA SMITH, Individually and as Executrix of DECISION/ORDER AS TO The ESTATE of MARK SMITH, MOT. SEQS. 37, 38, 40, 43 AND 44
INTERIM ORDER AS TO MOT. SEQS. 39 AND 42 Plaintiff(s), INDEX No.: 156780/2017 -against-
ASHLAND, INC et al. Present: Hon. Lynn R. Kotler, J.S.C. Defendant( s). --------------------------------------------------------x The following papers_were read. on this motion to/for -=s:.i..j....,,(s=e.::i.gu=e=n=ce=--=3:..:..7.... ) _ _ _ _ __ Notice of Motion/Petition/O.S.C. -Affidavits - Exhibits ....... ECFS Doc. No(s). 752-780 Notice of Cross-Motion/Answering Affidavits - Exhibits ........ ECFS Doc. No(s). 796-835 12/16/22 Letter, Exhibits ................................................. ECFS Doc. No(s). 836-837 Replying Affidavits ......................................................... ECFS Doc. No(s). 924-925 OA Transcript. .................................................................ECFS Doc. No(s). 1211 Stipulation ................................................................... ECFS Doc. No(s). 1212
The following papers_were read on this motion to/for -=s... i (=s=e.,.qu=e=n=c=e-=3..;:;.8.,_)_ _ _ _ __ Notice of Motion/Petition/O.S.C. -Affidavits - Exhibits ....... ECFS Doc. No(s). 842-853 Notice of Cross-Motion/Answering Affidavits- Exhibits ........ ECFS Doc. No(s). 948-997 Replying Affidavits ......................................................... ECFS Doc. No(s). 1175 OA Transcript. .............................................................. ECFS Doc. No(s). 1211
The following papers_were read on this motion to/for ___s..,_j.... {s...... e....au......e____n___ce _____3___ 9,_)_ _ _ _ __ Notice of Motion/Petition/O.S.C. -Affidavits - Exhibits ... ECFS Doc. No(s). 871-878 Notice of Cross-Motion/Answering Affidavits - Exhibits .... ECFS Doc. No(s). 1051-1073 Replying Affidavits .................................................... ECFS Doc. No(s). 1178-1182 OA Transcript.. ......................................................... ECFS Doc. No(s). __1=2""""'11______
The following papers_were read on this motion to/for -=s... i (=s=e_,.qu=e=n=c=e--=4=0.,_)~ - - - - - Notice of Motion/Petition/O.S.C. -Affidavits- Exhibits ... ECFS Doc. No(s). 879-887 Notice of Cross-Motion/Answering Affidavits - Exhibits ... ECFS Doc. No(s). 1140-1160 Replying Affidavits ................................................... ECFS Doc. No(s). 1184-1188 OATranscript. ......................................................... ECFS Doc. No(s).--=1=2-=-11~--
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The following papers_were read on this motion to/for ...::s=.i..i~Cs::.::e::.::gi.:::u~e.!.!n.:::.;ce=--:.4..:.4),____ _ _ _ __ Notice of Motion/Petition/O.S.C. -Affidavits- Exhibits ECFS Doc. No(s). _ __ Notice of Cross-Motion/Answering Affidavits - Exhibits ECFS Doc. No(s). _ __ Replying Affidavits ECFS Doc. No(s). _ __ OATranscript. .............................................................. ECFS Doc. No(s). 1211
Kotler, J.:
This action arises from plaintiffs decedent's exposure to products containing
benzene while working as a mechanic. Specifically, plaintiff alleges that toxic exposure
to benzene-containing products caused the decedent, Mark Smith, to contract
Myelodysplastic Syndrome ("MDS") and subsequently pass away in 2018. Plaintiff is
Sandra Smith, suing individually and as Executrix of the Estate of Mark Smith,
deceased, for negligence, breach of warranty, strict producfs liability, fraudulent
misrepresentation, loss of consortium, wrongful death and a claim under the New York
Survival Act. There are seven motions for summary judgment presently pending, which
are hereby consolidated for the court's consideration and disposition in this single
decision/order. At the outset, motion sequence 37 has been withdrawn since it was
orally argued (see NYSCEF Doc. No. 1212). The remaining motions are sequences 38-
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40 and 42-44.
In motion sequence 38, defendant United States Steel Corporation {"US Steel")
moves for partial summary judgment dismissing plaintiff's claims against it for fraudulent
misrepresentation and breach of express and implied warranties. Plaintiff opposes US
Steel's motion with respect to her fraud claim but does not oppose dismissal of her
warranty claims against US Steel.
In motion sequence 39, defendant CA Acquisition LLC d/b/a Chicago Aerosol
("CA") moves for summary judgment dismissing plaintiff's claims for gross negligence,
breach of warranty, fraudulent misrepresentation and punitive damages against it.
Plaintiff opposes that motion.
In motion sequence 40, defendants Chevron U.S.A. Inc. {"Chevron") and Union
Oil Company of California, d/b/a Unocal ("Unocal") move for summary judgment,
arguing that plaintiff cannot demonstrate that the decedent was exposed to Chevron
gasoline supplied to Gulf Oil Limited Partnership ("Gulf') or any other product
manufactured by Unocal containing benzene. Plaintiff does not oppose Chevron's
motion but contends that there is sufficient evidence that the decedent was exposed to
benzene contained in Safety-Kleen 105 solvent ("Safety Kleen"), and that Unocal was a
"main" supplier of benzene-containing mineral spirits comprising Safety Kleen.
In motion sequence 42, defendant The Berkebile Oil Company, Inc. ("Berkebile")
moves for partial summary judgment dismissing Plaintiff's claims for gross negligence,
breach of warranty, fraudulent misrepresentation, and punitive damages. Plaintiff
opposes that motion.
In motion sequence 43, defendant Sunoco (R&M) LLC {"Sunoco") moves to
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dismiss plaintiff's claims against it on the grounds that there is no evidence the
decedent was exposed to a solvent manufactured, supplied or distributed by Sunoco.
Plaintiff opposes the motion and contends that "[t]here is ample evidence that Mr. Smith
was exposed to benzene from Sunoco's mineral spirits supplied to Safety-Kleen
Systems, Inc. (hereinafter "Safety-Kleen") and to Sunoco gasoline delivered to Mr.
Smith's employer, Classic Auto."
Finally, in motion sequence 44, defendant Illinois Tool Works, Inc. ("ITW') moves
for partial summary judgment dismissing plaintiff's claims against it related to the use of
Permetex products and dismissing all of plaintiff's claims for breach of warranty,
fraudulent misrepresentation and punitive damages. Plaintiff does not oppose dismissal
of her claims related to Permetex products nor her breach of warranty claims, but
otherwise opposes the motion.
Facts relevant to all motions
The decedent was a mechanic on Long Island who worked at various service
stations from approximately 1965 through 2016. Specifically, the decedent worked at his
uncle's service station, Major Texaco, from 1978 to 1980, at Major Mobil, a service
station he operated from 1980 to 2003, and at Classic Auto from 2008 to 2016. During
that time, plaintiff alleges that the decedent was exposed to benzene-containing
products which led to him contracting MOS, which he was diagnosed with on January
25, 2016 and which caused his death on June 7, 2018. Plaintiff contends that the
defendants failed to warn the decedent about the known dangers of benzene-containing
products.
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Previously, plaintiff and the decedent brought an action for the same alleged
injuries and tortious activity against some of the same defendants in the Philadelphia
Court of Common Pleas on March 2, 2017 (the "Pennsylvania Action"). Thereafter,
plaintiff and the decedent brought this action on July 27, 2017. After several defendants
were dismissed in the Philadelphia Action on jurisdictional grounds, plaintiff stipulated to
dismissal of the Philadelphia Action and plaintiff and her decedent filed a Second
Amended Complaint in this action which added defendants dismissed from the
Pennsylvania Action.
After the decedent passed away, plaintiff filed a Third Amended Complaint on
September 6, 2018 which names twenty-four defendants. The Third Amended
Complaint asserts seven causes of action: (1) Negligence/Gross Negligence; (2) Breach
of Warranty; (3) Strict Products Liability; (4) Fraudulent Misrepresentation; (5) Loss of
Consortium; (6) Wrongful Death; and (7) a claim under the New York Survival Act. Issue
has been joined as to all the moving defendants, and the motions were timely brought
after note of issue was filed on September 30, 2022. Therefore, summary judgment
relief is available.
Applicable standard of law
On a motion for summary judgment, the proponent bears the initial burden of
setting forth evidentiary facts to prove a prima facie case that would entitle it to
judgment in its favor, without the need for a trial (CPLR 3212; Winegrad v. NYU Medical
Center, 64 NY2d 851 [1985]; Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]).
If the proponent fails to make out its prima facie case for summary judgment, however,
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then its motion must be denied, regardless of the sufficiency of the opposing papers
(Alvarez v. Prospect Hospital, 68 NY2d 320 [1986]; Ayotte v. Gervasio, 81 NY2d 1062
[1993]).
Granting a motion for summary judgment is the functional equivalent of a trial,
therefore it is a drastic remedy that should not be granted where there is any doubt as
to the existence of a triable issue (Rotuba Extruders v. Ceppos, 46 NY2d 223 [1977]).
The court's function on these motions is limited to "issue finding," not "issue
determination" (Sillman v. Twentieth Century Fox Film, 3 NY2d 395 [19571).
Motion sequence 38
Plaintiff opposes US Steel's motion with respect to her fraud claim but does not
oppose dismissal of her warranty claims against US Steel. Therefore, at the outset, US
Steel's motion is granted to the extent that plaintiff's warranty claims against US Steel
are severed and dismissed. With respect to US Steel, Plaintiff asserts that the decedent
worked with Liquid Wrench, a product manufactured by defendant Radiator Specialty
Company ("RSC"), which allegedly contained raffinate supplied by US Steel as an
ingredient At his deposition, the decedent testified that he used Liquid Wrench as a
penetrating oil from approximately the late 1960s through 2015.
Plaintiff claims that "defendants acted to manipulate public information and
knowledge in order to give the impression that benzene and benzene-containing
products were safe, or did not present the full scope of danger that they did, and to
prevent the disclosure of the information available to the defendants regarding the true
and full nature of the health hazards of benzene and benzene-containing products."
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Meanwhile, US Steel maintains that plaintiff's fraud claim against it should be dismissed
because US Steel did not owe plaintiff a duty to disclose the allegedly withheld
information to RSC about the safety of raffinate.
"The essential elements of a cause of action for fraud are 'representation of a
material existing fact, falsity, scienter, deception and injury"' (New York Univ. v.
Continental Ins. Co., 87 NY2d 308 [1995], quoting Channel Master Corp. v. Aluminum
Ltd. Sales, 4 NY2d 403 [1958]). A cause of action for fraudulent concealment requires,
in addition to the four elements of fraudulent misrepresentation, "an allegation that the
defendant had a duty to disclose material information and that it failed to do so"
(Mandarin Trading Ltd. v. Wildenstein, 16 NY3d 173 [2011] (citations omitted]).
There is interplay between the duty to warn and fraudulent concealment, where
the latter may give rise to the former (see i.e. Standish-Parkin v. Lorillard Tobacco Co.,
12 AD3d 301 [1st Dept 2004] [" ... in her first cause of action for failure to warn ...
(p]laintiff presented sufficient evidence to raise triable issues of fact as to the state of the
public's common knowledge of the risks of cigarette smoking prior to 1969, and whether
decedent had relied upon defendants' various allegedly fraudulent misrepresentations
and concealments of the truth concerning the safety and health risks of cigarettes"]).
"[A] manufacturer has a duty to warn against latent dangers resulting from foreseeable
uses of its product of which it knew or should have known. Additionally, the
manufacturer must warn of dangers arising from the product's intended use or a
reasonably foreseeable unintended use. The manufacturer's duty also includes a legal
obligation to issue warnings regarding hazards arising from foreseeable uses of the
product about which the manufacturer learns after the sale of the product. The duty
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extends to the original or ultimate purchasers of the product, to employees of those
purchasers, and to third persons exposed to a foreseeable and unreasonable risk of
harm by the failure to warn" (In re New York City Asbestos Utig., 27 NY3d 765, 788-89
[2016] [internal citations omitted]).
It is true that in the absence of a fiduciary relationship between parties, there is
no duty to warn about inherent and foreseeable risks (Blake v. Ford Motor Co., 41 AD3d
150 [1st Dept 2007] citing McGarr v. Guardian Life Ins. Co. of America, 19 AD3d 254
[1st Dept 2005] and Elghanian v. HaNey, 249 AD2d 206 [1st Dept 1998}). However,
plaintiff maintains that she properly asserted a fraudulent misrepresentation claim, not
merely omissions claim, which the court agrees with (see third amended complaint,
paragraphs 111, 143 and 146). Substantively, plaintiff points to evidence that RSC
requested information regarding the health hazards of raffinate and evidence that US
Steel potentially misrepresented the amount of benzene contained in raffinate. On these
facts, the court finds that plaintiff has at least raised a triable issue of fact sufficient to
defeat US Steel's motion to dismiss the fraud claim based upon fraudulent
misrepresentation.
Plaintiff further argues that a fraud claim based on omission also lies against US
Steel. US Steel disagrees and contends that such a claim is unavailing absent a
fiduciary relationship between US Steel and RSC. As opposed to an affirmative
misrepresentation, a fraud cause of action can also be predicated upon a duty to
disclose information and an omission. A fiduciary relationship can give rise to the duty to
disclose, which does not ordinarily exist between parties engaged in an arm's-length
transaction (Dembeck v. 220 Cent. Park South, LLC, 33 AD3d 491 [1 st Dept 2006]).
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However, the duty to disclose may also be predicated upon the "special facts" doctrine,
"where one party's superior knowledge of the essential facts renders a transaction
without disclosure inherently unfair" (Swersky v. Dreyer and Taub, 219 AD2d 321 [1 st
Dept 1996]).
In Swersky, the First Department held that there was an issue of fact as to
whether the special facts doctrine could be applied to save an omission-based fraud
claim. The Swersky Court explained that a "disparity in the level of information available
to [one party], but not to [the other], places this case within the ambit of the 'special
facts' doctrine, and ... whether plaintiffs could have through 'the exercise of ordinary
intelligence' independently ascertained that [information]" must also be determined.
Here, US Steel has shown that it did not exclusively possess knowledge vis-a-vis
RCS and further that RCS could have obtained knowledge of the dangers of Benzene-
containing compounds and products based on information that was available to the
general population and/or otherwise ascertainable by RCS' own employees. The court
disagrees with plaintiff that she has raised a triable issue of fact sufficient to defeat US
Steel's motion on this point. Accordingly, the balance of US Steel's motion for summary
judgment dismissing plaintiff's fraud claim based upon omission is granted and said
claim is severed and dismissed.
Motion sequences 39 and 42
Motion sequence 39 and 42 are interrelated, since the movant in motion
sequence 39, CA, manufactured a product called 2 Plus 2 Gum Cutter ("Gum Cutter")
for movant in motion sequence 42, Berkebile, which sold said product. Therefore, the
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court will consider them together. CA maintains that certificates of analysis for
component solvents used in the manufacture of Gum Cutter reveals that it contained
only "miniscule" amounts of benzene which thus required no warning. In turn, plaintiff
maintains that the motions are procedurally improper, since movants have raised facts
and arguments on reply for the first time, depriving plaintiff an opportunity to oppose
same. Further, plaintiff's counsel points to the certificates of analysis, claiming they do
not support CA and Berkebile's arguments and further that CA has failed to present
expert testimony establishing that the Gum Cutter was not dangerous of that the level of
benzene in the product otherwise complied with OSHA requirements.
The court cannot overlook the procedural issue raised by plaintiff on these
motions and will grant plaintiff an opportunity to submit a surreply. While counsel for the
movants asserted that the evidence submitted on reply was merely responsive to the
arguments raised by plaintiff in opposition, given the drastic effect of the relief
requested, the court cannot deprive plaintiff an opportunity to develop her record as to
whether the Gum Cutter or its components contained a sufficient amount of benzene
thereby triggering a reporting and/or labeling obligation. Therefore, the court will grant
plaintiff 30 days from notice of entry of this order to submit a surreply and will grant CA
and Berkebile an opportunity to submit a surreply within 30 days thereafter. The motions
will be calendared for submission of papers, only, on June 14, 2024. No appearances.
Motion sequence 40
At the outset, motion sequence 40 by Chevron and Unocal is granted to the
extent that plaintiff's claims against Chevron are severed and dismissed without
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opposition. The court turns to the balance of the motion, with respect to Unocal, which
plaintiff opposes. Unocal argues that there is no evidence that plaintiff's decedent was
exposed to Safety Kleen containing mineral spirits supplied by Unocal. In opposition,
plaintiff argues that Unocal has inappropriately attempted to shift its burden on this
motion. The court disagrees with plaintiff.
Plaintiff's decedent testified that he used Safety Kleen to clean parts as a
mechanic during his career. Further, Unocal was a supplier of mineral spirits/105 solvent
for use in Safety Kleen during the time plaintiff's decedent used the product. Plaintiff's
counsel points to deposition testimony given by a Safety Kleen witness, James Breece,
on January 28, 2014, admitting that Unocal was a supplier of mineral spirts for the
subject product from 1979 until at least 1993. Plaintiff's counsel further attempts to
characterize Unocal as a "main" supplier based on Breece's deposition testimony.
The facts here are more similar to those in Schiarldi v. U.S. Min. Prods. (194
AD2d 482 [1st Dept 1993]), than they are not. In that case, the First Department held
that the plaintiff in that case had failed to set forth evidentiary facts showing the
circumstances of his exposure to asbestos-containing product or its likelihood. Here,
while plaintiff's decedent testified that he was exposed to Safety Kleen and some
batches of Safety Kleen were comprised of Unocal's benzene-containing mineral spirits,
evidence of a nexus between Unocal's product and plaintiff is absent here. Therefore,
just as in Schiarldi, there is no evidence showing the circumstances or likelihood of
plaintiff's decedent's exposure to Unocal's particular product. Plaintiff's counsel's
attempt to paint Unocal as a "main" supplier is not substantiated by admissible
evidence. Indeed, Breece's deposition testimony merely listed Unocal as one of several
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companies which Safety Kleen purchased mineral spirits from, including Amoco,
Sunoco, Exxon, Shell, Hunt Refining and "probably others ... " On these facts, a jury
verdict against Unocal based upon plaintiff's decedent's alleged exposure to Unocal's
mineral spirits would be based upon rank speculation that plaintiff came into contact
with Unocal's mineral spirits. Therefore, plaintiff's claims against Unocal must be
dismissed as a matter of law.
Accordingly, the balance of motion sequence 40 for summary judgment
dismissing plaintiff's claims against Unocal is granted.
Motion sequence 43
Sunoco also argues, inter alia, that plaintiff cannot establish that her decedent
used Safety Kleen which was comprised of mineral spirits supplied by Sunoco.
However, in contrast to Unocal's motion, plaintiff has pointed to evidence that Sunoco
supplied mineral spirits to Safety-Kleens' Clayton, New Jersey facility, which in turn
supplied Safety-Kleen's North Amityville, New York branch, which then serviced
locations where plaintiff's decedent worked. Sunoco has otherwise failed to
demonstrate that its mineral spirits were not contained in Safety-Kleen products used by
plaintiff's decedent and therefore has not met its burden on this motion. Relatedly, the
court rejects Sunoco's argument that plaintiff's decedent's testimony lacked sufficient
proof that he used Safety-Kleen branded parts washers. His testimony is sufficient to at
least raise a triable issue of fact on this point.
Plaintiff further contends that her decedent was also exposed to benzene
contained in Sunoco's gasoline delivered to his employer, Classic Auto. The decedent
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specifically testified that when he pumped gas, gasoline would get on his skin and that
he breathed in gasoline vapors from the gas hoses. He further testified that he was
exposed to Sunoco's gasoline on a near-daily basis when it was delivered to service
stations and transferred to underground storage tanks as well as when he changed
pump filters and cleaned his tools and hands. On these facts, Sunoco'sliability may be
reasonably inferred since plaintiff has presented sufficient evidence to establish the
decedent's regular use and exposure to gasoline which Sunoco supplied to Classic Auto
(see i.e. Reid v. Georgia-Pacific, Corp., 212 AD2sd 462 [1st Dept 1995]).
Finally, Sunoco argues that plaintiff cannot establish "specific causation". There is
no dispute on this record that exposure to a certain amount of benzene for a certain
period of time can cause MOS. Thus, it is Sunoco's burden to show that its products
which plaintiff claims her decedent was exposed to contained an insufficient amount of
benzene to cause and/or contribute to the decedent's MOS (see i.e. Dyer v. Amchem
Prods. Inc., 207 AD3d 408 [1st Dept 2022]). Sunoco has wholly failed to meet this
burden.
Assuming arguendo that Sunoco had met its burden on this point, plaintiff has at
least raised a triable issue of fact through an affidavit from its own expert, Robert
Laumbach, M.D., M.P.H., C.I.H., D.A.B.T., a medical doctor specializing in internal
medicine and occupational/environmental medicine with over twenty-five years of
experience in the analysis of adverse health effects of occupational and environmental
agents. Not only does Dr. Laumbach note that benzene "is recognized as a human
carcinogen (cancer-causing agent) by all major agencies and authorities that regulate or
produce guidelines to prevent and control cancer from occupational and environmental
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chemicals", but also that "it is well established and generally accepted that benzene
causes MOS" and that "there is no threshold below which benzene does 1_1ot increase
the risk of leukemia and lymphoma. In general, the dose-response curve between
benzene exposure and leukemia risk appears to be linear at very low ppm-yr doses." Dr.
Laumbach further provides analysis of the risks associated with estimates of benzene-
exposure that plaintiff's decedent testified to, thereby demonstrating specific causation
(see i.e. Come/Iv. 360 West 51st Street Realty, LLC, 22 NY3d 762, 785 [2014]). On this
record, Dr. Laumbach's opinions are sufficient to at least raise a triable issue of fact on
causation.
Accordingly, Sunoco's motion is denied in its entirety.
Motion sequence 44
At the outset, ITW's motion is granted without opposition to the extent that
plaintiff's claims related to ITW's Permetex products as well as plaintiff's claims for
breach of warranty against ITW are severed and dismissed. The balance of the motion
seeking dismissal of plaintiff's fraudulent misrepresentation claim and claim for punitive
damages remains.
ITW and its predecessors manufactured and/or distributed a Gumout carburetor
cleaner which came in aerosol cans since at least 1980. Testimony and evidence
previously elicited in this case shows that plaintiff's decedent used Gumout products,
from 6-Bx a month up to 2-3x a week at various times, while working at Major Texaco,
Major Mobil and Classic Auto.
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ITW first argues that plaintiff lacks sufficient evidence that ITW made a false
representation to her decedent. Contrary to ITW's contention, plaintiff has in fact pointed
to sufficient evidence to raise a triable issue of fact on this point, to wit, warning labels
which did not list benzene as a component or that the benzene-containing product could
cause cancer, MSDS sheets, an internal audit by Penzzoil, the manufacturer of Gumout
products prior to ITW's acquisition of the brand in 2010, and a 1980 internal
memorandum from the federal government noting benzene content contained in
Gumout Jet Spray. While ITW argues that the evidence cited by Plaintiff, "at best, could
only relate to a negligent failure to warn claim, not one for fraudulent misrepresentation",
the court disagrees. On this record, there is sufficient evidence from which a reasonable
fact finder could conclude that ITW's predecessor, the manufacturer of Gumout
products, had a duty to warn of the risks of exposure to its benzene-containing products
and the warnings that were actually provided were insufficient based upon what ITW's
predecessors knew or should have known (see i.e. In re New York City Asbestos Litig.,
27 N.Y.3d 765, 788-89 [2016]). Further, plaintiff's decedent specifically testified that he
read product labels, especially if they had warning signs, thereby demonstrating
justifiable reliance.
To the extent that ITW seeks to avoid liability as a successor, the court rejects
this argument. Generally, a corporation which acquires the assets of another is not
liable for the predecessor corporation's torts (Semenetz v. Sherling & Walden, 7 NY3d
194 [2006]). There are, however, exceptions to this rule, which "arise where a successor
corporation expressly or impliedly assumes its predecessor's tort liability; or there is a
consolidation or merger of seller and purchaser; or the purchasing corporation is a mere
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continuation of the selling corporation; or the transaction is entered into fraudulently to
escape such obligations" (id. quoting Schumacher v. Richards Shear Co., Inc., 59 NY2d
239, 245 [1983] [internal quotations omitted)). Here, ITW has failed to present evidence
that none of the general exceptions apply and thus that' ITW cannot be held liable for its
predecessor's torts. Accordingly, ITW's motion for summary judgment dismissing
plaintiffs fraudulent misrepresentation claim is denied.
Finally, as for the punitive damages claim, ITW's arguments are unavailing. The
court agrees with plaintiff that her allegations of ITW's fraud and gross negligence
(which ITW has not moved for summary judgment on) support an award of punitive
damages by a jury. "Punitive damages are not to compensate the injured party but
rather to punish the tortfeasor and to deter this wrongdoer and others similarly situated
.from indulging in the same conduct in the future" (Ross v. Louise Wise Services, Inc., 8
N.Y.3d 478, 489, 836 N.Y.S.2d 509, 868 N.E.2d 189 [2007]). Punitive damages are
available upon proof of "the conscious disregard of the rights of others or for conduct so
reckless as to amount to such disregard" (Harlfor Acc. And lndem. Co. v. Village of
Hempstead, 48 NY2d 218 [1979] citing PJI 2:278). To sustain an award of punitive
damages, the defendant must purposefully cause, or be grossly indifferent to causing,
injury (Marinaccio v Town of Clarence, 20 NY3d 506, 512 [2013]). "[D]efendant's
behavior cannot be said to be merely volitional; an unmotivated, unintentional or even
accidental result of a legally intentional act cannot, alone, qualify." (Id.)
On this record, ITW's predecessor-in-interest placed benzene-containing
products into the stream of commerce despite the knowledge that benzene can cause
cancer and failed to warn its product users of the known risks of exposure to benzene.
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This is precisely the type of conduct that can.support a punitive damages claim. I
Accordingly, the balance of ITW's motion is denied.
Conclusion
In accordance herewith, it is hereby
ORDERED that motion sequence 37 is withdrawn; and it is further
ORDERED that motion sequence 38 is granted to the following extent: [1]
plaintiff's breach of warranty claims against defendant United States Steel Corporation
are severed and dismissed; and [2] plaintiffs fraud claim based upon omission is
severed and dismissed; and [3] the Clerk is directed to enter judgment accordingly; and
it is further
ORDERED that the balance of motion sequence 38 is denied; and it is further
ORDERED that motion sequences 39 and 42 are adjourned for submission of
papers as follows:
[1] plaintiff shall submit a surreply within 30 days from notice of entry of
this decision/order;
[2] CA and Berkebile shall submit a surreply within 30 days thereafter; and
[3]motion sequence numbers 39 and 42 are restored to the calendar for
submission of papers, only, on June 14, 2024. No appearances;
And it is further ORDERED that motion sequence 40 is granted to the extent that
plaintiff's claims against defendant Chevron U.S.A. Inc. and Union Oil Company of
California, d/b/a Unocal are severed and dismissed and the Clerk is directed to enter
judgment accordingly; and it is further
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ORDERED that motion sequence 43 is denied in its entirety; and it is further
ORDERED that motion sequence 44 is granted only to the extent that plaintiff's
claims related to defendant Illinois Tool Works, lnc.'s Permetex products as well as
plaintiff's claims for breach of warranty against Illinois Tool Works, Inc., are severed and
dismissed without opposition and the Clerk is directed to enter judgment accordingly;
and it is fur:ther
ORDERED that the balance of motion sequence 44 is denied.
Any requested relief not expressly addressed herein has nonetheless been
considered and is hereby expressly denied and this constitutes the Decision and Order
of the court.
Dated:
Hon. Lynn R. Kotler, J.S.C.
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