Denial of Summary Judgment to Flooring Defendants Affirmed on Motions to Reargue

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Supreme Court of New York, New York County, December 6, 2021

Defendants American Biltrite and Mannington Mills moved to reargue their motions for summary judgment, arguing that the court overlooked and misapprehended facts in denying the same. On the motions to reargue, the court first found that both defendants failed to establish that the court misapprehended or overlooked the facts or law when it found that issues of fact existed to preclude summary judgment.

The defendants argued that the court mistakenly relied upon the report oftheplaintiff’s expert, Dr. Mark Ginsburg, which they argued did not quantify the decedent’s asbestos exposure and, thus, failed to establish that the decedent was exposed to a sufficient level of asbestos to cause lung cancer.

The court found that the conflicting medical reports submitted by both the plaintiff and the defendants—oneof which provided the opinion that visible dust holds amounts of asbestos fiber concentrations that exceed OSHA standards, and one which provided the opinion that the visible dust inhaled by the decedent held amounts of asbestos fiber concentrations that did not exceed OSHA standards—raiseda genuine triable issue of fact. The court found that this “clear conflict in the evidence” precluded summary judgment.

American Biltrite also sought to reargue part of its motion for summary judgment on the plaintiff’s punitive damages claim, arguing that the court overlooked the issue, given that the court’s decision was silent on it. The court granted the motion to reargue this issue, but nevertheless denied the motion substantively. American Biltrite argued that punitive damages were inappropriate, as it complied with all federal and state regulations and also hired experts, and therefore its conduct could not be considered wanton, reckless, or malicious under the applicable punitive damages standard. On this, the court also found issues of fact that precluded summary judgment, holding that “it is black letter law” and that compliance with statutes or regulations does not prevent a court from finding that the defendant violated a “common-law duty.” The plaintiffs raised issues of fact related to American Biltrite’s knowledge of the potential hazards associated with asbestos and the adequacy of its warnings, and that American Biltrite failed to demonstrate that the plaintiff would be unable to establish that its conduct was wanton or reckless to justify an award of punitive damages.

Read the full decision here.