The following e-filed documents, listed by NYSCEF document number (Motion 004) 26, 27, 28, 29, 44, 45, 46, 47, 48, 49, 50, 51, 52, 82, 84, 95 were read on this motion to/for DISMISSAL. DECISION ORDER ON MOTION Upon the foregoing documents, and after oral argument, which took place on March 7, 2023, where Janet Walsh, Esq. appeared for the Plaintiffs Emilio Tucci (“Emilio”) and Marta Tucci (collectively “Plaintiffs”) and Christine Emery, Esq. appeared on behalf of Defendant BASF Corporation (“BASF”) BASF’s partial motion to dismiss for failure to state a claim is granted in part and denied in part. I. Background This action arises out of Emilio’s alleged exposure to benzene containing products which Plaintiffs allege caused Emilio’s multiple myeloma (“MM”). Plaintiffs initiated this action via Summons and Complaint dated October 28, 2022 (NYSCEF Doc. 1). Plaintiffs allege that Emilio was employed by General Motors Corporation from 1979 through 2022 (id. at 17). He worked on the paint line and paint repair line, which is when he was allegedly exposed to the benzene containing products (id.). Specifically, from 1979 through 1996, Emilio worked at the Tarrytown Plant in Tarrytown, New York. Thereafter, from 1996 through 2006, he worked at a plant in Doraville, Georgia. After Georgia, Emilio worked at a General Motors plant in Arlington, Texas from 2006 through 2022 (id.). Plaintiffs allege that Emilio’s exposure to benzene-containing products during his employment caused him to be diagnosed with MM on November 2, 2021 (id. at 20). Plaintiffs allege that the named Defendants, amongst other things, manufactured, refined, designed, produced, packaged, sold, distributed, marketed, re-labeled, or supplied the benzene-containing products which allegedly caused Emilio’s MM (id. at 18). Plaintiffs allege that the Defendants failed to warn Emilio about the dangers associated with the use of their benzene-containing products (id. at 21). Plaintiffs allege a variety of causes of action against Defendants. Plaintiffs allege (1) negligence/gross negligence; (2) breach of implied warranty; (3) strict products liability; (4) fraudulent misrepresentation, and (5) loss of consortium (id. at
22-117). BASF made the instant pre-answer partial motion to dismiss on December 29, 2022 (NYSCEF Doc. 26). Like Defendant PPG in motion sequence 001, BASF moves to dismiss Plaintiff’s breach of the implied warranty of merchantability and fraud causes of action, as well as Plaintiff’s request for punitive damages (NYSCEF Doc. 55). Aside from there being no personal jurisdiction argument, BASF’s arguments for dismissal mirror its co-defendant’s PPG’s arguments made in motion sequence 001 (see NYSCEF Docs. 7 and 29). Likewise, Plaintiffs’ arguments in opposition to Shell’s motion to dismiss are largely identical to the arguments Plaintiffs made in opposition to PPG’s motion to dismiss (see NYSCEF Docs. 42 and 50). Thus, for the sake the Court incorporates the summary of arguments made in this Court’s Decision and Order on motion sequence 001. II. Discussion When reviewing a pre-answer motion to dismiss for failure to state a claim, the Court must give Plaintiff the benefit of all favorable inferences which may be drawn from the pleadings and determine only whether the alleged facts fit within any cognizable legal theory (Sassi v. Mobile Life Support Services, Inc., 37 NY3d 236, 239 [2021]). All factual allegations must be accepted as true (Allianz Underwriters Ins. Co. v. Landmark Ins. Co., 13 AD3d 172, 174 [1st Dept 2004]). Conclusory allegations or claims consisting of bare legal conclusions with no factual specificity are insufficient to survive a motion to dismiss (Godfrey v. Spano, 13 NY3d 358, 373 [2009]; Barnes v. Hodge, 118 AD3d 633, 633-634 [1st Dept 2014]). A motion to dismiss for failure to state a claim will be granted if the factual allegations do not allow for an enforceable right of recovery (Connaughton v. Chipotle Mexican Grill, Inc., 29 NY3d 137, 142 [2017]). BASF’s motion to dismiss Plaintiffs’ fraudulent misrepresentation claim is denied. To sufficiently allege fraudulent misrepresentation, a plaintiff must allege (1) defendant made a material false representation, (2) defendant intended to defraud plaintiffs thereby, (3) plaintiffs reasonably relied upon representation, and (4) plaintiffs suffered damages as a result of their reliance (J.A.O. Acquisition Corp. v. Stavitsky, 18 AD3d 389 [1st Dept 2005] citing Swersky v. Dreyer and Traub, 219 AD3d 321 [1st Dept 1996]). CPLR 3016(b) imposes a heightened pleading standard for fraud, however, that requirement is not to be interpreted “to prevent an otherwise valid cause of action in situations where it may be ‘impossible to detail the circumstances constituting a fraud’” (Pludeman v. Northern Leasing Systems, Inc. 10 NY3d 486, 491 [2008] citing Lanzi v. Brooks, 43 NY2d 778, 780 [1977] quoting Jered Contr. Corp. v. New York City Tr. Auth., 22 NY2d 187, 194 [1968]). Plaintiffs here specifically allege that the Defendants knew their products had dangerous levels of benzene yet manipulated public information to give the impression their products were safe, and prevented disclosure of information regarding the true and full nature of the health hazards of benzene (NYSCEF Doc. 1 at
