The Appellate Division, First Department, at 27 Madison Ave. (NYLJ/Rick Kopstein)
As attorneys prepare to clash before an appeals court over new rules for the New York City asbestos docket, which includes an option for plaintiffs to assert punitive damages, the court ruled on Tuesday to allow full implementation of the rules while the appeal is pending.
A panel of the Appellate Division, First Department, issued a brief motion order ending a stay on the new case management order for the New York City Asbestos Litigation docket issued in July by fellow First Department Justice Ellen Gesmer.
Gesmer’s stay had spared the provision to reinstate the punitive damages option for plaintiffs, a portion of the new order that has been met with vehement resistance from the defense bar.
Other provisions in the new management order include limiting the joinder of cases for trial to two cases and relaxing hearsay rules to allow the submission of information that would typically be barred by New York’s rules of evidence.
Justices Richard Andrias, Judith Gische, Cynthia Kern, Jeffrey Oing and Anil Singh signed the motion order.
While the ultimate fate of the case management order, which had been set to take effect on July 20 before it was met with a legal challenge, will be determined after arguments before a full panel of First Department justices, Seth Dymond, a partner at Belluck & Fox and a member of the asbestos plaintiffs’ bar, said the ruling Tuesday to deny a full stay indicates that the plaintiffs bar may succeed on the merits.
Dymond said oral arguments on the appeal are set for the First Department’s November term.
Attorneys for the asbestos defense bar did not respond to requests for comment.
Punitive damages have been unavailable for plaintiffs since 1996, when then-Manhattan Supreme Court Justice Helen Freedman deferred punitive claims indefinitely.
But in 2014, Manhattan Supreme Court Justice Sherry Klein Heitler found that punitive claims could be sought; the First Department affirmed Heitler, but stayed reintroduction of punitive claims until a new case management order was hammered out.