SUPREME COURT : COUNTY OF CHAUTAUQUA
BRUCE BENSON, Individually and
as Parent and Natural Guardian
OF KINSEY L. BENSON AND KARA M.
-vs- Index #H-2244
SYNTEX LABORATORIES, INC., a
Corporation; SYNTEX CORPORATION,
MISERENDINO, KRULL & FOLEY
(Paul A. Foley, Esq. of
Counsel) for Plaintiffs
LESTER, SCHWAB, KATZ &
DWYER (Jennifer E. Bienstock,
Esq. of Counsel) for Defendants
DECISION AND ORDER
Plaintiff moves to amend the complaint; Defendants move
for partial summary judgment that would bar plaintiffs from
seeking punitive damages.
Summary judgment is often termed a drastic remedy and
will not be granted if there is any doubt as to the existence
of a triable issue. As the procedural equivalent of a trial,
it is used sparingly. David D. Siegel, New York Practice,
Section 278. (Case citations omitted).
The function of the motion is issue finding rather than
issue determination. Siegel, supra, citing SILLMAN V.
TWENTIETH CENTURY FOX FILM CORP, 3 NY2d 395, 404, 165 NYS2d
If the Court finds generally controverted any fact on
which liability depends, it cannot grant the motion. Siegel,
supra, citing CPLR 3212(b).
If the issue is arguable, trial is needed and the case
may not be disposed of summarily. Siegel, supra, citing
BARRET V. JACOBS, 255 NY 520.
"Where the court entertains any doubt as to whether a
triable issue of fact exists, summary judgment should be
denied. . . ." DALIENDO v. JOHNSON, 147 AD2d 312, 543 NYS2d
The same is true when a key issue turns on the
credibility of opposing affiants. Only rarely can a
credibility issue be resolved as a matter of law. Siegel,
supra, citing RICKERT V. TRAVELERS INS. CO 159 AD2d 758,
551 NYS2d 985.
The credibility of Dr. Saperstein is clearly in issue.
What he knew and when he knew it is in question. Whether he
read all of the reports that would have alerted him of
problems, or, merely read the last page of only one, is a
question for the jury.
But, there is more in the case that could support a
claim for punitive damages.
In ZURICH INS. V. SHEARSEN LEHMAN, 84 NY2d 309, The
Court of Appeals said:
"New York takes the position that vicarious
punitive damages can significantly advance the
deterrence goal by motivating an employer
adequately to supervise its employees, particularly
those whose actions may reflect what has come to be
known as (page 321) "the corporate culture" and
implicate the "institutional conscience (See,
Aldrich v. Thomson 89 F. Supp 683, 686 [SDNY],
judgment vacated on other grounds 756 F2d 243),
and to take preventative and corrective measures
(See, Loughry v Lincoln First Bank, 67 NY2d 369,
377). . ." .
The following items could form the basis for punitive
- The fact that defendants knew it had no one with
chemical or nutritional knowledge or higher authority in
control of their manufacturing plant or even within one
hundred miles of it to oversee its operations.
- The fact that the staff was so poorly trained that
they did not know the difference between chlorine, a cleaning
fluid, or chloride.
- The failure to take minimum steps to ensure the
nutritional adequacy of a product corporate management knew
was the sole source of nutrition for babies.
- The fact that the corporation knew chloride was an
essential nutritional ingredient; had laboratory reports
dating back 5 years indicating the baby formula was
dangerously low in chloride, lower than the recommended
levels; lower than the level in the initial formula.
- The fact that the defendants unreasonably delayed
checking their own lab reports even after scientists and
physicians questioned defendants about the adequacy of
chloride levels in the product, resulting in millions of
cans of deficient product being placed on the market.
- The fact that even after receiving information of a
patient with metabolic alkalosis, a condition caused by low
chloride, defendants neglected to conduct even minimal
investigation of their product without receipt of code
numbers on the product being ingested by the patient; that
a mere check on the products then being produced would have
revealed levels of chloride low enough to result in
metabolic alkalosis, a life threatening condition (the
condition presented by the Benson twins).
- The fact that defendants, knowing that no one at the
manufacturing plant had nutritional knowledge, nevertheless
permitted that inadequately supervised, inadequately
monitored plant to produce product for years without
reviewing any chloride test results, indicating conduct
that could be characterized as complete indifference.
- The fact that the defendants failed to put the plant
in charge of people with nutritional knowledge and instead
located its nutritionist some 2,000 miles away from the
- The fact that the defendants knew the product was
intended for babies as a sole source of nourishment and
sole source of growth and development; knew that other than
breath, water and mother's milk, the product was the
difference between life, health, and death of babies.
The complaint in this case does not explicitly plead
punitive damages, nor does the ad damnum clause separately
pray for such damages as suggested by Carmody-Wait 2d
However, a claim for punitive damages need not be
explicitly pleaded if facts entitling plaintiffs to such
damages are alleged. 36 NYJUR 2d 189.
Summary judgment on punitive damages is inappropriate
where there are issues of fact and a plaintiff's right to
punitive damages is dependent on proof of all the
circumstances; in such a case, a plenary trial is
necessary. 36 NY Jur 2d Supp, Section 189, citing GLICK V.
NOZELL, 1983, (4th Dept) 94 AD2d 956, 464 NYS2d 81; See
also BALENO V. JACUZZI RESEARCH, INC., (4th Dept) 93 AD2d
982, 461 NYS2d 659; HUTCHINS V. UTICA MUT. INS. CO, 484
A "heedless and utter disregard [for the] rights and
safety of others" (Sweeney v McCormick, 552 NYS2d 707) or
"conduct is so reckless or wantonly negligent as to be the
equivalent of a conscious disregard of the rights of
others" (Dumensil v Proctor & Schwartz, Inc., 606 NYS2d
394,) proven by "preponderance of the evidence" (Simpson v.
Pittsburgh Corning Corp, (CA2 NY) 901 F2d 277) will meet
the test for submission of punitive damages to a jury. See
HOME INS. CO. V. AMERICAN HOME PRODUCTS, 75 NY2d 196, 551
Plaintiffs have raised sufficient questions of fact
showing they should be permitted to offer evidence to
demonstrate that defendants acted with a "high degree of
moral culpability which manifests a 'conscious disregard of
the rights of others or conduct so reckless as to amount to
such disregard'"; especially since "such conduct need not
be intentionally harmful but may consist of actions which
constitute willful or wanton negligence or recklessness."
Defendants say New York adheres to a "corporate
complicity" doctrine that does not impose punitive damages
on a corporation unless "the management of the company or
the relevant division 'either authorized, participated in,
consented to or, after discovery, ratified the conduct'
giving rise to such damages. They cite Roginsky, 378 F2d at
842, quoting CLEGHORN V. NEW YORK CENT & HRRR, 56 NY 44, an
1874 case, and LOUGHRY V. LINCOLN FIRST BANK, N.A., 67 NY2d
It appears that Dr. Saperstein was the only person in
the entire corporate structure who had sufficient
nutritional background and product knowledge to judge the
adequacy of the product. As such, he was "the management"
or "the relevant division" of the corporation.
As "management", Saperstein had reports showing
defects in the products, one of which he specifically
ordered. His response was that he did not look at one
report in its entirety and failed to look at relevant
portions of another. The corporation's top nutritionist,
top scientist had the information but says he neglected to
look at it.
Plaintiffs have met the Roginsky standard that deals
with a corporation's management that deliberately closed
Roginsky defines conduct of a sufficient culpability
as putting on a product without any test program meets its
test. Here, defendant's lab director intentionally
discontinued testing for chloride because, in his admitted
nutritional ignorance, he considered the test optional; he
thought he was testing for a cleaning fluid.
Defendants' motion for partial summary judgment is
Plaintiffs' motion for amendment of the complaint is
granted, but, the Court notes that both plaintiffs seek a
total of $5,000,000. At the argument, plaintiffs' counsel
reported an intention that each plaintiff seeks that
amount, but, the ad damnum as approved here is limited to
$5 million for both, not each.
THIS IS THE DECISION AND ORDER OF THIS COURT. NO
FURTHER ORDER SHALL BE NECESSARY.
Dated: October , 1995
Mayville, New York
Supreme Court Justice
To all Counsel:
Please take notice that a DECISION and ORDER of
which the within is a copy, is duly granted in the above
entitled action on the day of , 1995, and
duly entered in the office of the Clerk of the County of
Chautauqua on the same date.