Jurisdiction: Supreme Court of New York, New York County

In this asbestos-related lawsuit, the plaintiff alleged he was exposed to asbestos while working with, and around, boilers manufactured by defendant, Burnham, from 1961 to 1999.

Burnham filed a motion for partial summary judgment as to punitive damages, arguing the plaintiff failed to establish that Burnham’s conduct rose to the level of egregious and morally culpable conduct necessary for an award of punitive damages. According to Burnham, any exposure to asbestos by plaintiff through Burnham boilers were below the regulated threshold limits and permissible exposure limits. As such, Burnham argued that its failure to warn did not rise to reckless and wanton disregard to support a claim for punitive damages. Plaintiff opposed the motion.

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 Prospect Hosp., 68 NY2d 320, 324, 501 N.E.2d 572, 508 N.Y.S.2d 923 (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.” Winegrad v New York University Medical Center, 64 NY2d 851, 853, 476 N.E.2d 642, 487 N.Y.S.2d 316 (1985).

Despite the sufficiency of the opposing papers, the failure to make such a showing requires denial of the motion. 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 City of New York, 49 NY2d 557, 560, 404 N.E.2d 718, 427 N.Y.S.2d 595 (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 J.C. Duggan, Inc., 180 AD2d 579, 580, 580 N.Y.S.2d 294 (1st Dep’t 1992), citing Dauman Displays, Inc. v Masturzo, 168 AD2d 204, 562 N.Y.S.2d 89 (1st Dep’t 1990).

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 NY2d 955, 956-957, 678 N.E.2d 467, 655 N.Y.S.2d 855 (1997).

In denying Burnham’s motion here, the court found that Burnham failed to proffer sufficient evidence to establish entitlement to summary judgment on the punitive damages claim. That is, Burnham failed to demonstrate their prima facie burden that punitive damages were not warranted.

The court also found the plaintiff presented evidence that showed Burnham failed to warn plaintiff of the hazards of asbestos, creating an issue of fact for the jury — “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.” Accordingly, the court denied Burnham’s motion.

Read the full decision here.