Summary
dismissing claim on summary judgment because it was "far too speculative" since plaintiffs offered no proof "that they had been advised by medical personnel of the likelihood of developing cancer"
Summary of this case from IN RE METHYL TERTIARY BUTYL ETHER PRODUCTS LIABOpinion
January 25, 1993
Appeal from the Supreme Court, Kings County (Williams, J.).
Ordered that the order is affirmed, with one bill of costs.
The plaintiffs allege that they have suffered severe emotional distress due to the defendants' disruption of asbestos while installing a new gas heating and hot water system. The plaintiffs contend that the defendants wantonly and maliciously refused to clean up the asbestos, causing the plaintiffs and their family to leave their home for three months, to incur unnecessary expenses, and to sustain, among other things, sleeplessness, anxiety, changes in appetite and temper, inability to concentrate, and the fear of developing cancer.
We agree that the plaintiffs have failed to establish a viable cause of action to recover damages for emotional distress. The plaintiffs have offered no evidence of asbestos contamination which might develop into cancer. While it is true that New York recognizes a cause of action to recover damages for pure emotional distress (see, Ferrara v. Galluchio, 5 N.Y.2d 16), the plaintiffs must produce evidence which is sufficient to guarantee the genuineness of the claim (see, Johnson v. State of New York, 37 N.Y.2d 378). The plaintiffs have not offered any proof that they have been physically contaminated by asbestos or that they had been advised by medical personnel of the likelihood of developing cancer (see, Ferrara v. Galluchio, supra). The claim asserted, without further proof of contamination, is far too speculative (see, Rittenhouse v. St. Regis Hotel Joint Venture, 180 A.D.2d 523; Gerardi v. Nuclear Util. Servs., 149 Misc.2d 657; Ordway v County of Suffolk, 154 Misc.2d 269; Petri v. Bank of N.Y., 153 Misc.2d 426; Hare v. State of New York, 143 Misc.2d 281, affd 173 A.D.2d 523; Doe v. Doe, 136 Misc.2d 1015).
The plaintiffs' demand for punitive damages was properly stricken, as the plaintiffs did not allege any acts by the defendants which bore such a high degree of moral culpability as to warrant punitive damages (see, Rose Lee Mfg. v. Chemical Bank, 186 A.D.2d 548; Jakobsen v. Wilfred Labs., 99 A.D.2d 525). The plaintiffs failed to allege facts as to the defendants' conduct which would support anything other than a finding of ordinary negligence (see, McDougald v. Garber, 73 N.Y.2d 246).
We have reviewed the plaintiffs' remaining contentions and find them to be without merit. Mangano, P.J., Rosenblatt, Ritter and Santucci, JJ., concur.