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.
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SUPREME COURT OF THE STATE OF NEW YORK 

COUNTY OF NEW YORK: 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/ORDER AS TO 

MOT. SEQS. 37, 38, 40, 43 AND 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 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"'-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 of Cross-Motion/Answering Affidavits - Exhibits .... ECFS Doc. No(s). 1034-1050 

Replying Affidavits .................................................... ECFS Doc. No(s) . ....:1--!..17.:..;:3::....__ 

OA Transcript. .......................................................... 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 of Cross-Motion/Answering Affidavits- Exhibits .... ECFS Doc. No(s).1097-1139 

Replying Affidavits ...................................................... ECFS Doc. No(s) . ...,_11=-=8.;::;..3 __ 

OA Transcript.. .......................................................... 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 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 Benzenecontaining 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 benzeneexposure 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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