Court: Supreme Court of New York, New York County (NYCAL)

In this asbestos action, boiler defendant Burnham LLC was sued for a variety of claims, including failure to warn, loss of consortium, and punitive damages. Burnham moved to dismiss the claims, arguing the plaintiff failed to plead with particularity.

A motion to dismiss for failure to state a claim “will generally depend upon whether or not there was substantial compliance with CPLR 3013”; that is, if the allegations are not “sufficiently particular to give the court and parties notice of the transactions intended to be proved and the material element of each cause of action,” the cause of action will be dismissed.

Here, Burnham moved to dismiss the plaintiff’s failure to warn claims on the basis that plaintiff did not meet the standard for an injury arising from the foreseeable use of Burnham’s non-asbestos equipment (boilers) in conjunction with a third party’s asbestos-containing components thatwere “necessary” for Burnham’s product to function as intended.

The court disagreed, noting that there was ample evidence Burnham was aware that certain asbestos-containing components (such as asbestos cement) were clearly necessary, and expected to be used, in Burnham boilers. This was sufficient for the failure to warn claims and, accordingly, the loss of consortium claim.

Burnham also moved to dismiss the plaintiff’s claims for punitive damages on the basis that they were not pled sufficiently and, therefore, implicate procedural due process. The court again disagreed, noting that plaintiff incorporated punitive damages in its standard complaint, where it was sufficiently pled.

For these reasons, the court denied Burnham’s motion to dismiss, finding that plaintiff pled all claims with sufficient particularity. 

Read the full decision here.