Motion-Secondary: Emilio Tucci, Marta Tucci v. Ashland, Llc. F/K/A Ashland, Inc.,, Basf Corporation, Individually And As Successor In Interest To Inmont Corporation And D/B/A Basf-Inmont, Successor In Interest To And D/B/A Glasurit And R-M Company F/K/A Rinshed Mason Company, E.I. Du Pont De Nemours & Company, Icc Chemical Corporation, Ppg Industries, Inc., Shell Oil Company, Sunoco, Llc F/K/A Sunoco, Inc. (R&M), Texaco, Inc., Univar Usa, Inc. F/K/A Chemcentral Corp., And Van Waters & Rodgers, Inc.

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                                FILED:         NEW     YORK       COUNTY        CLERK        01/19/2023             09:32        AM                 INDEX    NO.   159245/2022
   NYSCEF     DOC.   NO.   52                                                                                 RECEIVED      NYSCEF:     01/19/2023




                  SUPREME COURT OF THE STATE OF NEW YORK
                  COUNTY OF NEW YORK
                  ---------------------------------------------------------------------X
                   EMILIO TUCCI and MARTA TUCCI,

                                                                Plaintiff,
                                                                                               Index No.: 159245/2022
                          -against-

                   ASHLAND, LLC. f/k/a Ashland, Inc., et al.
                                                                                               REPLY AFFIRMATION IN
                                                                Defendants.                    SUPPORT OF BASF
                                                                                               CORPORTION’S MOTION
                                                                                               TO DISMISS
                   ---------------------------------------------------------------X


                           CHRISTINE M. EMERY, an attorney duly admitted to practice law in the courts of the

                  State of New York, hereby affirms the following, subject to the penalties of perjury.

                           1.       I am an attorney at law and a member of the law firm of LITTLETON PARK

                  JOYCE UGHETTA & KELLY LLP, attorneys for defendant BASF Corporation (“BASF”).                                      I

                  submit this Reply Affirmation in further support of BASF’s Motion to Dismiss.

                                                                       POINT I

                         PLAINTIFFS’ FRAUD CLAIM FAILS TO COMPLY WITH THE PLEADING
                                                   REQUIREMENTS OF CPLR § 3016(b)

                         1.         CPLR § 3016(b) provides that "Where a cause of action or defense is based upon

                  misrepresentation, fraud . . . the circumstances constituting the wrong shall be stated in detail."

                  Solow v. W.R. Grace & Co., 1989 N.Y. Misc. LEXIS 894, *10-12 (quoting Block v. Landegger,

                  66 A.D.2d 707 (1st Dept 1978), aff'd, 49 N.Y.2d 741 (1980)). The elements of a fraud cause of

                  action include a representation of a material fact, which is untrue or recklessly made, scienter,

                  reliance and damages. Id. at *10-12 (citations omitted).




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                           2.       “[T]he circumstances of the fraud must be stated in detail, including specific dates

                  and items.” Orchid Constr. Corp. v Gonzalez, 89 A.D.3d 705, 707-708. (2d Dept 2011); see also

                  Morales v AMS Mtge. Servs., Inc., 69 A.D.3d 691, 692 (2d Dept 2010). "[M]ere allegations, in

                  conclusory form, that the moving defendants participated in or assisted in the commission of a

                  fraud are insufficient to state a cause of action . . . ." Glatzer v. Scappatura, 99 A.D.2d 505 (2d

                  Dept 1984).

                           3.       Plaintiffs’ fraud claim fails as the necessary element of reasonable reliance is

                  absent.   Despite the specificity requirement for a fraud claim, Plaintiffs devote only one

                  paragraph to the reliance element, merely asserting that Mr. Tucci and others “relied upon the

                  fraudulent representations, misrepresentations and omissions made by the Defendants.” See

                  Cmplt, ¶ 113.

                           4.       Because Plaintiffs’ fraud claim fails to comply with the heightened pleading

                  standard of CPLR § 3016(b), it should be dismissed.

                                                                      POINT II

                         PLAINTIFFS’ BREACH OF WARRANTY CLAIM SHOULD BE DISMISSED.

                           5.       Plaintiffs’ breach of warranty claim lacks a necessary element because Plaintiffs

                  have failed to allege that the products at issue were not fit for their ordinary purpose, causing

                  Plaintiffs’ allegations to fall short of supporting a breach of warranty claim under New York law.

                           6.       Plaintiffs allege only that BASF placed products which allegedly contained

                  benzene into the stream of commerce and that those products possibly reached a location where

                  Mr. Tucci worked.

                           7.       Plaintiffs have failed to allege that BASF’s products were not “fit for the ordinary

                  purpose.”    Plaintiffs have not alleged paint products allegedly delivered to Mr. Tucci by BASF



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                  were unfit for their ordinary use – e.g. to paint surfaces.         Further, under the reasoning of

                  Ferracane v. United States, No. 02-CV-1037 (SLT), 2007 U.S. Dist. LEXIS 6569, *25

                  (E.D.N.Y. Jan. 29, 2007) paint does not have to be “perfectly safe,” rather it should have a

                  minimal level of quality with regard to the use as paint.           The same analysis applies to other

                  BASF products which Plaintiffs allege contained benzene.

                           8.       Moreover, as Plaintiff acknowledges in her brief,1 the breach of warranty claim is

                  time-barred to the extent that it is based on the use of goods delivered more than 4 years prior to

                  the date that Plaintiffs asserted their claim. See, Rose v. Am. Tobacco Co., 787 N.Y.S. 2d 681

                  (Sup. Ct. 2004).

                           9.       This component of BASF’s motion to dismiss is not premature as there is no

                  amount of discovery that can bring the time-barred portions of Plaintiffs’ breach of warranty

                  claim within the limitations period.

                                                                      POINT III

                              PLAINTIFFS FAIL TO STATE A BASIS FOR PUNITIVE DAMAGES

                           10.      Plaintiffs’ punitive damages claim must be dismissed because there is no proof

                  that BASF’s alleged conduct met the strict requirements of a punitive damages claim.

                           11.      It is well established that punitive damages will only be awarded in exceptional

                  cases when the defendant’s conduct is so reckless or wantonly negligent as to constitute a

                  “conscious disregard of the rights of others.” Marinaccio v. Town of Clarence, 20 NY3d 506,

                  510-11 (2013); also Gauger v. Ghaffari, 8 AD3d 968 (4th Dept 2003).




                  1
                   See, Plaintiffs’ Opposition at page 12.

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                           12.      Under New York law, punitive damages are permitted only in “singularly rare

                  cases” where “extreme aggravating factors” are present. Maltese v. Westinghouse Elec. Corp.,

                  225 A.D.2d 414, 415 (1st Dept 1996), aff’d 89 N.Y2d 955.

                           13.      Mere recklessness and gross negligence are not sufficient to support a claim for

                  punitive damages.      See e.g., Randi A. J. v. Long Island Surgi-Ctr., 842 N.Y.S.2d 558, 565 (2d

                  Dept 2007).

                           14.       “[P]laintiff must show, by ‘clear, unequivocal and convincing evidence,’

                  egregious and willful conduct’ that is ‘morally culpable, or is actuated by evil and reprehensible

                  motives.’” Munoz v. Puretz, 301 AD2d 382, 384 (1st Dept 2003); see also, Randi, 842 N.Y.S.2d

                  at 568.

                           15.      There are no allegations that BASF’s conduct manifested a wanton indifference or

                  conscious disregard of the interests of others. Accordingly, Plaintiffs’ request for punitive

                  damages should be stricken from the Complaint.

                                                                  CONCLUSION

                           16.      For the reasons set forth above and in movant’s initial brief, BASF respectfully

                  requests that the Court grant its motion in its entirety and enter an Order dismissing Plaintiffs’

                  causes of action for breach of warranty and fraudulent misrepresentation, striking Plaintiff’s

                  request for punitive damages, and granting such other relief as the Court deems proper.

                  Dated:   January 19, 2023
                  New York, New York


                                                                                 Robert J. Kelly, Esq.
                                                                                 Christine M. Emery, Esq.
                                                                                 LITTLETON PARK JOYCE
                                                                                 UGHETTA & KELLY LLP
                                                                                 Attorneys for Defendant
                                                                                 BASF Corporation

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