### 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

2 of 19 SUPREME COURT OF THE STATE OF NEWYORK COUNTY OF NEWYORK: PART 

### 8



## -- --------------------------------x SANDRA SMITH, Individually and as Executrix of The ESTATE of MARK SMITH,

-againstASHLAND, INC et al. Plaintiff(s),

Defendant(s). 

## --------------------------------------------------------x DECISION/ORDERAS TO MOT. SEQS. 

### 37, 38,40,43AND

### 44 INTERIM ORDER AS TO MOT. SEQS. 

### 39 AND 

### 42 

### INDEX No.: 156780/2017 Present: Hon. Lynn R. 

### Kotler, J.S.C.
The following papers_were read. on this motion to/for -=s:.i..j....,,(s=e.::i.gu=e=n=ce=--=3:..:..7
.... )
_____ _ Notice ofMotion/Petition/O.S.C. -Affidavits- Exhibits
.......ECFS Doc. No(s). 752-780 Notice ofCross-Motion/AnsweringAffidavits - 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 OATranscript.
.................................................................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 ofMotion/Petition/O.S.C. -Affidavits- Exhibits
.......ECFS Doc. No(s). 842-853 Notice ofCross-Motion/Answering Affidavits- Exhibits
........ECFS Doc. No(s). 948-997 Replying Affidavits
.........................................................ECFS Doc. No(s). 1175 OATranscript.
..............................................................ECFS Doc. No(s). 1211 The following papers_were read on this motion to/for
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_____ _ Notice of Motion/Petition/O.S.C. -Affidavits- Exhibits
... ECFS Doc. No(s). 871-878 Notice ofCross-Motion/Answering Affidavits - Exhibits
....ECFS Doc. No(s). 1051-1073 Replying Affidavits
....................................................ECFS Doc. No(s). 

### 1178-1182 OATranscript..
......................................................... ECFS Doc. No(s).
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______ The following papers_were read on this motion to/for-=s ... 

## i (=s=e_,.qu=e=n=c=e--=4=0.,_)~----- Notice ofMotion/Petition/O.S.C. -Affidavits- Exhibits
...ECFS Doc. No(s). 879-887 Notice ofCross-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~--

1



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3 of 19 

### The following papers_were read on this motion to/for ..:s"'-j....,(s=e=g=u=e:..:.nce=-=-4-'-'2=).__ _____ _ Notice of Motion/Petition/O.S.C. -Affidavits- Exhibits
... ECFS Doc. No(s). 864-870 Notice ofCross-Motion/Answering Affidavits - Exhibits
....ECFS Doc. No(s). 1034-1050 Replying Affidavits ....................................................ECFS Doc. No(s)
. ....:1--!..17.:..;:3::....__ OATranscript. .......................................................... ECFS Doc. No(s).--=1=2...,_11'--_ The following papers_were read on this motion to/for ...::S=.i..j~{s::.::e::.::gi.:::u~e,!.!n.:::.;ce=--:.4=3),___ _____ _ Notice of Motion/Petition/O.S.C. -Affidavits - Exhibits
.... ECFS Doc. No(s).854-863 Notice ofCross-Motion/Answering Affidavits- Exhibits
.... ECFS Doc. No(s).1097-1139 Replying Affidavits...................................................... ECFS Doc. No(s)
. ...,_11=-=8.;::;..3__ OATranscript............................................................ ECFS Doc. No(s)."'"'-'12=-1.a...:1~- The following papers_were read on this motion to/for...::s=.i..i~Cs::.::e::.::gi.:::u~e.!.!n.:::.;ce=--:.4..:.4),___ _____ _ Notice ofMotion/Petition/O.S.C. -Affidavits- Exhibits ECFS Doc. No(s).
__ _ Notice ofCross-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 ofthe Estate of Mark Smith, deceased, for negligence, breach ofwarranty, strict producfs liability, fraudulent misrepresentation, loss ofconsortium, wrongful death and a claim underthe NewYork SurvivalAct. There are seven motions for summaryjudgment presently pending, which are hereby consolidated for the court's consideration and disposition in this single decision/order. Atthe outset, motion sequence 37 has been withdrawn since itwas orally argued (see NYSCEF Doc. No. 1212). The remaining motions are sequences 38- 

### 2



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4 of 19 40 and 42-44. In motion sequence 38, defendant United States Steel Corporation {"US Steel") moves for partial summaryjudgment dismissing plaintiff's claims against it forfraudulent misrepresentation and breach ofexpress and implied warranties. Plaintiffopposes US Steel's motion with respectto herfraud claim but does not oppose dismissal ofher warranty claims against US Steel. In motion sequence 39, defendant CAAcquisition LLC d/b/a ChicagoAerosol ("CA") moves for summaryjudgment dismissing plaintiff's claims for gross negligence, breach ofwarranty, fraudulent misrepresentation and punitive damages against it. Plaintiffopposes 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 summaryjudgment, arguing that plaintiff cannot demonstratethatthe decedent was exposed to Chevron gasoline supplied to GulfOil Limited Partnership ("Gulf') or any other product manufactured by Unocal containing benzene. Plaintiffdoes not oppose Chevron's motion but contends that there is sufficient evidence thatthe decedentwas exposed to benzene contained in Safety-Kleen 105 solvent ("Safety Kleen"), and that Unocal was a "main" supplier ofbenzene-containing mineral spirits comprising Safety Kleen. In motion sequence 42, defendantThe Berkebile Oil Company, Inc. ("Berkebile") moves for partial summaryjudgment dismissing Plaintiff's claims for gross negligence, breach ofwarranty, fraudulent misrepresentation, and punitive damages. Plaintiff opposes that motion. In motion sequence 43, defendant Sunoco (R&M) LLC {"Sunoco") moves to 3



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5 of 19 dismiss plaintiff's claims against it on the grounds thatthere is no evidence the decedentwas exposed to a solvent manufactured, supplied ordistributed 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, ClassicAuto." Finally, in motion sequence 44, defendant Illinois Tool Works, Inc. ("ITW') moves for partial summaryjudgment dismissing plaintiff's claims against it related to the use of Permetex products and dismissing all of plaintiff's claims for breach ofwarranty, fraudulent misrepresentation and punitive damages. Plaintiffdoes not oppose dismissal of her claims related to Permetex products nor her breach ofwarranty claims, but otherwise opposes the motion.
Facts relevant to all motions The decedentwas a mechanic on Long Island who worked at various service stationsfrom approximately 1965through 2016. Specifically, the decedentworked at his uncle's service station, MajorTexaco, from 1978to 1980, at Major Mobil, a service station he operated from 1980to 2003, and at ClassicAuto from 2008 to 2016. During that time, plaintiff alleges that the decedentwas 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. Plaintiffcontends that the defendants failed to warn the decedent aboutthe known dangers of benzene-containing products. 4



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6 of 19 Previously, plaintiffand the decedent brought an action forthe same alleged injuries and tortious activity against some ofthe same defendants in the Philadelphia Court ofCommon Pleas on March 2, 2017 (the "PennsylvaniaAction"). Thereafter, plaintiffand the decedent brought this action on July 27, 2017. After several defendants were dismissed in the PhiladelphiaAction on jurisdictional grounds, plaintiffstipulated to dismissal ofthe PhiladelphiaAction and plaintiff and herdecedentfiled a Second Amended Complaint in this action which added defendants dismissed from the Pennsylvania Action. After the decedent passed away, plaintifffiled a Third Amended Complaint on September 6, 2018 which names twenty-four defendants. The Third Amended Complaint asserts seven causes ofaction: (1) Negligence/Gross Negligence; (2) Breach ofWarranty; (3) Strict Products Liability; (4) Fraudulent Misrepresentation; (5) Loss of Consortium; (6) Wrongful Death; and (7) a claim under the NewYork Survival Act. Issue has beenjoined as to all the moving defendants, and the motions were timely brought after note of issue was filed on September 30, 2022. Therefore, summaryjudgment relief is available. Applicable standard oflaw On a motion for summaryjudgment, the proponent bears the initial burden of setting forth evidentiary facts to prove a prima facie case that would entitle itto judgment in its favor, without the need for a trial (CPLR 3212; Winegrad

### v. NYU Medical Center, 64 NY2d 851 [1985]; Zuckerman 

### v. CityofNew York, 49 NY2d 557, 562 [1980]). Ifthe proponent fails to make out its prima facie case for summaryjudgment, however, 

### 5



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7 of 19 then its motion must be denied, regardless ofthe sufficiency ofthe opposing papers (Alvarez 

### v. ProspectHospital, 68 NY2d 320 [1986]; Ayotte 

### v. Gervasio, 81 NY2d 1062 [1993]). Granting a motion for summaryjudgment is the functional equivalent ofa trial, therefore it is a drastic remedy that should not be granted where there is any doubt as to the existence ofa 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 CenturyFox Film, 3 NY2d 395 [19571).
Motion sequence 38 Plaintiffopposes US Steel's motion with respect to herfraud claim but does not oppose dismissal of herwarranty claims against US Steel. Therefore, atthe outset, US Steel's motion is granted to the extentthat plaintiff's warranty claims against US Steel are severed and dismissed. With respect to US Steel, Plaintiff asserts thatthe 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 decedenttestified that he used Liquid Wrench as a penetrating oil from approximately the late 1960sthrough 2015. Plaintiff claims that "defendants acted to manipulate public information and knowledge in orderto give the impression that benzene and benzene-containing products were safe, ordid not present the full scope ofdangerthatthey did, and to prevent the disclosure ofthe information available to the defendants regarding the true and full nature ofthe health hazards ofbenzene and benzene-containing products." 

### 6



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8 of 19 Meanwhile, US Steel maintains that plaintiff's fraud claim against it should be dismissed because US Steel did not owe plaintiffa duty to disclose the allegedly withheld information to RSC about the safety of raffinate. "The essential elements ofa cause ofaction for fraud are 'representation ofa material existing fact, falsity, scienter, deception and injury"' (New York Univ. 

### v. ContinentalIns. Co., 87 NY2d 308 [1995], quoting ChannelMasterCorp. 

### v. Aluminum Ltd. Sales, 4 NY2d 403 [1958]). A cause ofaction for fraudulent concealment requires, in addition to the four elements offraudulent misrepresentation, "an allegation thatthe 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 dutyto warn and fraudulent concealment, where the latter may give rise to the former (see i.e. Standish-Parkin 

### v. Lorillard Tobacco Co., 12AD3d 301 [1st Dept 2004] ["
... in herfirst cause ofaction forfailure to warn... (p]laintiff presented sufficient evidence to raise triable issues offact as to the state ofthe public's common knowledge ofthe risks ofcigarette smoking priorto 1969, and whether decedent had relied upon defendants' various allegedly fraudulent misrepresentations and concealments ofthe truth concerning the safety and health risks ofcigarettes"]). "[A] manufacturer has a duty to warn against latent dangers resulting from foreseeable uses of its product ofwhich it knew or should have known. Additionally, the manufacturer mustwarn ofdangers arising from the product's intended use ora reasonably foreseeable unintended use. The manufacturer's duty also includes a legal obligation to issue warnings regarding hazards arising from foreseeable uses ofthe product aboutwhich the manufacturer learns afterthe sale ofthe product. The duty 7



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9 of 19 extends to the originalor ultimate purchasers ofthe product, to employees ofthose purchasers, and to third persons exposed to a foreseeable and unreasonable risk of harm by thefailure to warn" (In re New York CityAsbestos Utig., 27 NY3d 765, 788-89 [2016] [internal citations omitted]). It is true that in the absence ofa fiduciary relationship between parties, there is no duty to warn about inherent and foreseeable risks (Blake 

### v. FordMotorCo., 41 AD3d 150 [1st Dept 2007] citing McGarr

### v. Guardian Life Ins. Co. of America, 19AD3d 254 [1st Dept 2005] and Elghanian 

### v. HaNey, 249AD2d 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 offact sufficientto defeat US Steel's motion to dismiss the fraud claim based upon fraudulent misrepresentation. Plaintifffurther argues that a fraud claim based on omission also lies against US Steel. US Steel disagrees and contends thatsuch a claim is unavailing absent a fiduciary relationship between US Steel and RSC. As opposed to an affirmative misrepresentation, a fraud cause ofaction can also be predicated upon a dutyto disclose information and an omission. Afiduciary relationship can give rise to the dutyto 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]). 8



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10 of 19 However, the dutyto disclose may also be predicated upon the "special facts" doctrine, "where one party's superior knowledge ofthe essential facts renders a transaction without disclosure inherently unfair" (Swersky 

### v. Dreyerand Taub, 219 AD2d 321 [1 st Dept 1996]). In Swersky, the First Department held thatthere was an issue offact as to whether the special facts doctrine could be applied to save an omission-based fraud claim. The SwerskyCourt explained that a "disparity in the level ofinformation available to [one party], but notto [the other], places this case within the ambit ofthe 'special facts' doctrine, and
... whether plaintiffs could have through 'the exercise ofordinary 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 ofthe dangers ofBenzenecontaining compounds and products based on information thatwas available to the general population and/or otherwise ascertainable by RCS' own employees. The court disagrees with plaintiffthat she has raised a triable issue offact sufficientto 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 9



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11 of 19 court will considerthem together. CAmaintains that certificates ofanalysis for component solvents used in the manufacture ofGum Cutter reveals that it contained only "miniscule" amounts ofbenzene which thus required no warning. In turn, plaintiff maintains thatthe motions are procedurally improper, since movants have raised facts and arguments on reply forthe first time, depriving plaintiff an opportunity to oppose same. Further, plaintiff's counsel points to the certificates ofanalysis, claiming they do not support CAand Berkebile's arguments and further that CAhas failed to present expert testimony establishing that the Gum Cutter was not dangerous ofthat the level of benzene in the product otherwise complied with OSHA requirements. The court cannot overlook the procedural issue raised by plaintiffon these motions and will grant plaintiffan opportunityto submit a surreply. While counsel forthe movants asserted that the evidence submitted on reply was merely responsive to the arguments raised by plaintiff in opposition, given the drastic effect ofthe 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 ofbenzene thereby triggering a reporting and/or labeling obligation. Therefore, the court will grant plaintiff30 days from notice ofentry ofthis orderto 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 10



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12 of 19 opposition. The court turns to the balance ofthe motion, with respect to Unocal, which plaintiffopposes. Unocal argues thatthere is no evidence that plaintiff's decedentwas exposed to Safety Kleen containing mineral spirits supplied by Unocal. In opposition, plaintiffargues that Unocal has inappropriately attempted to shift its burden on this motion. The court disagrees with plaintiff. Plaintiff's decedenttestified that he used Safety Kleen to clean parts as a mechanic during his career. Further, Unocal was a supplier ofmineral 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 ofmineral spirts forthe subject productfrom 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 similarto 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 thatthe plaintiff in that case had failed to setforth evidentiary facts showing the circumstances of his exposure to asbestos-containing product or its likelihood. Here, while plaintiff's decedenttestified that he was exposed to Safety Kleen and some batches ofSafety Kleen were comprised of Unocal's benzene-containing mineral spirits, evidence ofa 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 ofseveral 

### 11



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13 of 19 companies which Safety Kleen purchased mineral spirits from, including Amoco, Sunoco, Exxon, Shell, Hunt Refining and "probably others
..." On these facts, ajury verdict against Unocal based upon plaintiff's decedent's alleged exposure to Unocal's mineral spirits would be based upon rank speculation that plaintiffcame into contact with Unocal's mineral spirits. Therefore, plaintiff's claims against Unocal must be dismissed as a matterof law. Accordingly, the balance of motion sequence 40 for summaryjudgment dismissing plaintiff's claims against Unocal is granted.
Motion sequence 43 Sunoco also argues, interalia, that plaintiff cannot establish that herdecedent used Safety Kleen which was comprised ofmineral spirits supplied by Sunoco. However, in contrastto Unocal's motion, plaintiff has pointed to evidence that Sunoco supplied mineral spirits to Safety-Kleens' Clayton, New Jerseyfacility, which in turn supplied Safety-Kleen's North Amityville, NewYork branch, which then serviced locations where plaintiff's decedentworked. 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 proofthat he used Safety-Kleen branded parts washers. His testimony is sufficientto at least raise a triable issue offact on this point. Plaintifffurther contends that herdecedentwas also exposed to benzene contained in Sunoco's gasoline delivered to his employer, ClassicAuto. The decedent 12



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14 of 19 specifically testified thatwhen 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 ClassicAuto (see i.e. Reid

### v. Georgia-Pacific, Corp., 212AD2sd 462 [1st Dept 1995]). Finally, Sunoco argues that plaintiff cannot establish "specific causation". There is no dispute on this record thatexposure to a certain amount ofbenzene for a certain period oftime can cause MOS. Thus, it is Sunoco's burden to showthat its products which plaintiff claims herdecedentwas 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., 207AD3d 408 [1st Dept 2022]). Sunoco has wholly failed to meetthis burden. Assuming arguendo that Sunoco had met its burden on this point, plaintiff has at least raised a triable issue offact through an affidavitfrom its own expert, Robert Laumbach, M.D., M.P.H., C.I.H., D.A.B.T., a medical doctorspecializing in internal medicine and occupational/environmental medicine with overtwenty-five years of experience in the analysis ofadverse health effects ofoccupational and environmental agents. Not only does Dr. Laumbach note that benzene "is recognized as a human carcinogen (cancer-causing agent) by all majoragencies and authorities that regulate or produce guidelines to prevent and control cancer from occupational and environmental 13



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15 of 19 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 ofleukemia and lymphoma. In general, the dose-response curve between benzene exposure and leukemia risk appears to be linear atvery low ppm-yr doses." Dr. Laumbach further provides analysis ofthe risks associated with estimates of benzeneexposure that plaintiff's decedenttestified to, thereby demonstrating specific causation (see i.e. Come/Iv. 360 West 51stStreet Realty, LLC, 22 NY3d 762, 785 [2014]). On this record, Dr. Laumbach's opinions are sufficient to at least raise a triable issue offact on causation. Accordingly, Sunoco's motion is denied in its entirety.

Motion sequence 44 Atthe 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 ofwarranty against ITWare severed and dismissed. The balance ofthe motion seeking dismissal ofplaintiff's fraudulent misrepresentation claim and claim for punitive damages remains. ITWand 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 upto 2-3x a week at various times, while working at MajorTexaco, Major Mobil and ClassicAuto. 14



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16 of 19 ITWfirst argues that plaintiff lacks sufficient evidence that ITW made a false representation to herdecedent. Contrary to ITW's contention, plaintiff has in fact pointed to sufficient evidence to raise a triable issue offact on this point, to wit, warning labels which did not list benzene as a component orthatthe benzene-containing product could cause cancer, MSDS sheets, an internal audit by Penzzoil, the manufacturer ofGumout products priorto ITW's acquisition ofthe brand in 2010, and a 1980 internal memorandum from the federal government noting benzene content contained in GumoutJet Spray. While ITWargues 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 ofGumout products, had a duty to warn ofthe risks ofexposure to its benzene-containing products and the warnings that were actually provided were insufficient based upon what ITW's predecessors knew orshould have known (see i.e. In re New York CityAsbestos Litig., 27 N.Y.3d 765, 788-89 [2016]). Further, plaintiff's decedent specifically testified that he read product labels, especially ifthey had warning signs, thereby demonstrating justifiable reliance. To the extent that ITWseeks to avoid liability as a successor, the court rejects this argument. Generally, a corporationwhich acquires the assets ofanother 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 ofseller and purchaser; orthe purchasing corporation is a mere 

### 15



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17 of 19 continuation ofthe selling corporation; orthe transaction is entered into fraudulently to escape such obligations" (id. quoting Schumacher

### v. Richards ShearCo., Inc., 59 NY2d 239, 245 [1983] [internal quotations omitted)). Here, ITW has failed to present evidence that none ofthe general exceptions apply and thus that' ITWcannot be held liable for its predecessor's torts. Accordingly, ITW's motion for summaryjudgment dismissing plaintiffs fraudulent misrepresentation claim is denied. Finally, as forthe punitive damages claim, ITW's arguments are unavailing. The court agrees with plaintiffthat her allegations of ITW's fraud and gross negligence (which ITW has not moved for summaryjudgment on) support an award ofpunitive damages by ajury. "Punitive damages are notto compensate the injured party but ratherto punish the tortfeasor and to deterthis 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 proofof"the conscious disregard ofthe rights ofothers orfor conduct so reckless as to amountto such disregard" (HarlforAcc. Andlndem. Co. 

### v. Village of Hempstead, 48 NY2d 218 [1979] citing PJI 2:278). To sustain an award ofpunitive damages, the defendantmust purposefully cause, or be grossly indifferent to causing, injury (Marinaccio v Town ofClarence, 20 NY3d 506, 512 [2013]). "[D]efendant's behavior cannot be said to be merely volitional; an unmotivated, unintentional oreven accidental result ofa legally intentional act cannot, alone, qualify." (Id.) On this record, ITW's predecessor-in-interest placed benzene-containing products into the stream ofcommerce despite the knowledge that benzene can cause cancer and failed to warn its product users ofthe known risks ofexposure to benzene. 

### 16



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18 of 19 This is precisely the type ofconduct that can.support a punitive damages claim. I Accordingly, the balance of ITW's motion is denied.
Conclusion In accordance herewith, it is hereby ORDEREDthat motion sequence 37 is withdrawn; and it is further ORDERED that motion sequence 38 is granted to the following extent: 

### [1] plaintiff's breach ofwarranty 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 enterjudgment accordingly; and it is further ORDERED that the balance ofmotion sequence 38 is denied; and it is further ORDERED that motion sequences 39 and 42 are adjourned for submission of papers asfollows: 

### [1] plaintiffshall submit a surreply within 30 days from notice ofentry of this decision/order; [2] CAand Berkebile shall submit a surreplywithin 30 daysthereafter; and [3]motion sequence numbers 39 and 42 are restored to the calendarfor submission of papers, only, on June 14, 2024. No appearances; And it is further ORDEREDthat 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 17



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19 of 19 ORDERED that motion sequence 43 is denied in its entirety; and it is further ORDEREDthat 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 ofwarranty against Illinois Tool Works, Inc., are severed and dismissed without opposition and the Clerk is directed to enterjudgment accordingly; and it is fur:ther ORDERED thatthe balance ofmotion 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 ofthe court. Dated:
Hon. Lynn R. Kotler, J.S.C.



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