Document for Dean Battaglia, Jean Battaglia v. Amalie Oil Company, Amrep, Inc., Ashland, Llc. F/K/A Ashland, Inc., Autozone, Inc., Bg Products, Inc., Bp Products North America Inc., Brenntag Northeast, Llc, F/K/A Brenntag Northeast, Inc., Conocophillips Company, Crc Industries, Inc., Energizer Auto Manufacturing, Inc., Individually And As Successor In Interest To The Armor All/Stp Products Company, Genuine Parts Company D/B/A Napa, Henkel Us Operations Corp, Individually And Successor In Interest To Loctite Corporation, Hess Corporation, Hyundai Motor America, Illinois Tool Works, Inc., D/B/A Permatex, D/B/A Gumout, M. Spiegel & Sons Oil Corp., National Automotive Parts Association Llc, Safety-Kleen Systems, Inc., Schrader-Bridgeport International, Inc., Individually And As Successor-In-Interest To Bridge Products, Inc., Bridgeport Brass Company And H.B. Egan Manufacturing Company, Shell Usa, Inc. F/K/A Shell Oil Company, Sunoco R&M, Llc F/K/A Sunoco, Inc. R&M F/K/A Sun Company, Inc. F/K/A Sun Oil Company, Inc., The B'Laster Corporation, The Berkebile Oil Company, Inc., The Sherwin-Williams Company, Individually And D/B/A The Martin Senour Company, United States Steel Corporation, Univar Solutions Usa, Inc., Individually F/K/A And Successor In Interest To Univar Usa, Inc., Chemcentral Corp. And Van Waters & Rogers

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                                FILED: NEW YORK COUNTY CLERK 10/13/2023 12:44 PM                                                   INDEX NO. 158327/2023
NYSCEF DOC. NO. 74                                                                         RECEIVED NYSCEF: 10/13/2023




          FISHKIN LUCKS LLP
          Steven M. Lucks, Esq.
          David A. Giroux. Esq.
          500 7th Avenue, 8th Floor
          New York, NY 10018
          (646) 755-9200
          slucks@fishkinlucks.com
          dgiroux@fishkinlucks.com
          Attorneys for Defendant CRC Industries, Inc.

          SUPREME COURT OF THE STATE OF NEW YORK
          COUNTY OF NEW YORK

            DEAN BATTAGLIA and JEAN                             Index No. 158327/2023
            BATTAGLIA,

                              Plaintiffs,
                                                                REPLY MEMORANDUM OF LAW IN
                       -against-                                SUPPORT OF CRC INDUSTRIES, INC.’S
                                                                MOTION FOR PARTIAL DISMISSAL
            AMALIE OIL COMPANY, et al.,

                              Defendants.


                  Defendant CRC Industries, Inc. (“CRC”) respectfully submits this reply memorandum of

          law in support of its motion to dismiss Plaintiffs’ causes of action for breach of warranty and

          fraudulent misrepresentation pursuant to CPLR 3211(a)(5) and (7).

                  I.        Plaintiffs’ Cause of Action for Breach of Warranty Against CRC is
                            Undisputedly Time Barred and Must be Dismissed

                  CRC moved to dismissed Plaintiffs’ breach of warranty claim—in which they only allege

          breach of the implied warranty of merchantability—because is time barred under the applicable

          four year statute of limitations. Although they argue that their implied warranty claim should not

          be dismissed, Plaintiffs do not dispute that the four year statue of limitations applies to their breach

          of warranty claim, and indeed “agree to withdraw their claim for breach of implied warranty

          against CRC as to Mr. Battaglia’s exposures to its benzene-containing products occurring prior to




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          August 22, 2019.” Pls.’ Mem. of Law at 6-7. However, Plaintiffs do not allege that Mr. Battaglia

          was exposed to the products of any defendant, including CRC products, after 2017. Giroux Aff.

         Ex. 1 ¶¶ 36-38, 41. Therefore, Plaintiffs’ breach of warranty cause of action as to CRC became

         time barred, at latest, in 2021—two years before they filed their complaint—and must be dismissed

         outright.

                 II.     Plaintiffs Fail to State a Cause of Action for Fraudulent Misrepresentation
                         Against CRC

                 Plaintiffs’ Complaint is utterly devoid of any specific facts or details that would support a

         cause of action for fraud. In arguing that they have met the heightened pleading standard for causes

         of action sounding in fraud, Plaintiffs do nothing more than point to the vague, broad, general

         allegations in their Complaint made against all defendants collectively, rather than CRC

         specifically, and their conclusory allegation that “CRC knew that benzene causes cancer” yet

         nevertheless failed to “provide warnings to Mr. Battaglia or the public concerning [] benzene-

         related health hazards.” Pls.’ Mem. of Law at 11. What Plaintiffs do not do is point to any specific

          facts or details in their Complaint regarding the representation or misrepresentation allegedly made

          by CRC to Mr. Battaglia, how that alleged representation or misrepresentation was false, CRC’s

          state of mind and intent to deceive Mr. Battaglia, or how Mr. Battaglia justifiably relied upon

          CRC’s alleged false representation or misrepresentation.

                 Moreover, with regard to Plaintiffs’ argument that they sufficiently plead fraud because

         they allege that CRC knew that “benzene causes cancer” yet failed to “provide warnings to Mr.

         Battaglia or the public concerning . . . benzene-related health hazards,” Plaintiffs ignore the

         allegations against CRC in their Complaint. Plaintiffs do not allege that CRC manufactured or sold

         benzene to which Mr. Battaglia was exposed. Instead, they merely allege that CRC manufactured

         and sold “CRC Carburetor Cleaner and CRC Brakleen products” which are alleged to contain



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          solvents it purchased from co-defendants, including toluene, xylene, mineral spirits, but not

          benzene. Giroux Aff. Ex. 1 ¶¶ 7, 11, 13, 26, 31. Accordingly, whatever CRC knew about the health

          hazards of benzene is immaterial; what matters is what CRC knew about the health hazards of the

          products it is alleged to have sold and the solvents contained therein. C.f. Parker v. Mobil Oil

          Corp., 7 N.Y.3d 434, 449-50 (2006) (in a case involving alleged exposures to benzene in gasoline,

          affirming decision to exclude plaintiff’s experts’ opinions that gasoline exposures could have

          caused his AML because what was “key” to the case was whether “exposure to gasoline,” not

          benzene, could cause AML and the “experts were unable to identify a single epidemiologic study

          finding an increased risk of AML as a result of exposure to gasoline.”) (emphasis in original). In

         their Complaint, Plaintiffs allege all defendants, including CRC, were aware that benzene could

          cause “cancer and fatal blood disease” based upon knowledge defendants are alleged to have

          acquired from various scientific, regulatory, and trade sources, yet “withheld this knowledge and

          did not warn or otherwise disclose this information to the Plaintiff or the public.” Id. ¶¶ 81-89,

          129-132. However, nowhere in their Complaint do Plaintiffs plead that CRC knew that solvents it

          incorporated into its products— toluene, xylene, and mineral spirits—could cause AML

         (something CRC does not presently know since those solvents do not cause AML). Because

         Plaintiffs’ Complaint does not plead specific facts about CRC’s knowledge of the products at

          issue—only benzene—and because Plaintiffs’ Opposition to CRC’s Motion likewise only argues

          that CRC knew benzene—not the products CRC is alleged to have sold and the solvents contained

          therein—could cause cancer, their claim for fraudulent misrepresentation must be dismissed.1



          1
           Plaintiffs’ argument that CRC committed fraud because it failed to “provide warnings to Mr.
         Battaglia or the public” regarding “benzene-related health hazards” is also belied by their own
         pleading. Pls. Mem. of Law at 11. Nowhere in their Complaint do they allege that benzene’s ability
         to cause certain cancers, such as AML, was knowledge uniquely know by CRC. Indeed, they allege
         that information about the hazards of benzene have been published in publicly-available sources


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                                                 CONCLUSION

                 For the foregoing reasons, and those stated in its memorandum of law in support of its

         motion for partial dismissal, CRC respectfully requests that this Court dismiss Plaintiffs’ causes

         of action against CRC for breach of warranty and fraud.


         Dated: New York, New York
                October 13, 2023                        FISHKIN LUCKS LLP

                                                        /s/ David A. Giroux
                                                        Steven M. Lucks, Esq.
                                                        David A. Giroux, Esq.
                                                        Attorneys for Defendant
                                                        CRC Industries, Inc.




          as far back as 1923, and that the federal government “declar[ed] benzene . . . a known human
          carcinogen” in 1977. Giroux Aff. Ex. 1 ¶¶ 81-89. CRC could not have fraudulently concealed
          information that was available to the public and widely disseminated and known.


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FILED: NEW YORK COUNTY CLERK 10/13/2023 12:44 PM                                           INDEX NO. 158327/2023
NYSCEF DOC. NO. 74                                                                 RECEIVED NYSCEF: 10/13/2023




         FISHKIN LUCKS LLP
         500 7th Avenue, 8th Floor
         New York, NY 10018
         (646) 755-9200
         Attorneys for Defendant CRC Industries, Inc.

         SUPREME COURT OF THE STATE OF NEW YORK
         COUNTY OF NEW YORK

            DEAN BATTAGLIA and JEAN                        Index No. 158327/2023
            BATTAGLIA,

                           Plaintiffs,
                                                           CERTIFICATION OF DAVID A.
                    -against-                              GIROUX, ESQ., PURSUANT TO
                                                           RULE 202.8-b
            AMALIE OIL COMPANY, et al.,

                           Defendants.


                 I, David A. Giroux, hereby certify that according to the word processing software with

          which it was prepared, the foregoing document contains 1036 words, exclusive of this page,

          caption, tables, and signature blocks.


          Dated: New York, New York                                /s/ David A. Giroux
                 October 13, 2023                                  David A. Giroux, Esq.




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