STATE OF NEW YORK

SUPREME COURT : COUNTY OF CHAUTAUQUA

___________________________________

BRUCE BENSON, Individually and

as Parent and Natural Guardian

OF KINSEY L. BENSON AND KARA M.

BENSON, Infants,

Plaintiffs,

-vs- Index #H-2244

SYNTEX LABORATORIES, INC., a

Corporation; SYNTEX CORPORATION,

a Corporation,

Defendants.

___________________________________

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

GERACE, J.

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

498.

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

987.

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

damages:

- 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

plant.

- 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

28:31,32.

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

NYS2d 686.

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

NYS2d 481.

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

369.

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

its eyes.

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

denied.

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

____________________________

JOSEPH GERACE

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.