288 A.D.2d 148 (N.Y. App. Div. 2001)

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Berkowitz v. A.C. and S., Inc.

Appellate Division of the Supreme Court of New York, First Department

Nov 29, 2001

288 A.D.2d 148 (N.Y. App. Div. 2001)

Summary

holding that a genuine issue of material fact existed as to whether a manufacturer had a duty to warn of the dangers of asbestos that it neither manufactured or installed

Summary of this case from Coffman v. Armstrong Int'l, Inc.

See 12 Summaries

Opinion

November 29, 2001.

Orders, Supreme Court, New York County (Helen Freedman, J.), entered on or about June 18, 2001 (Appeal Nos. 5104, 5105, 5106, 5107, 5108, 5109 and 5111) and July 12, 2001 (Appeal No. 5110), which denied defendants-appellants' motions for summary judgment, unanimously affirmed, without costs.

Stephen Rackow Kaye, for plaintiffs-respondents.

Ira G. Greenberg, for defendants-appellants.

Stephen Rackow Kaye, for plaintiff-respondent.

Before: Nardelli J.P., Tom, Andrias, Lerner, Marlow, JJ.

The inability of certain of plaintiffs to identify defendant Worthington as the manufacturer of the pumps containing the asbestos to which they were allegedly exposed does not require dismissal of their actions, where defendants' own witness conceded that Worthington pumps were on a very high percentage of Navy ships during the relevant time period, and workers in the Brooklyn Navy Yard testified at their depositions that the pumps they saw on ships in the Navy Yard were manufactured by Worthington (see, Salerno v. Garlock Inc., 212 A.D.2d 463). An issue of fact as to whether these pumps contained asbestos is raised by defendants' admission that Worthington sometimes used gaskets and packing containing asbestos; plaintiff Tancredi's production of a Worthington manual for the power plant where he worked referring to an asbestos component in one of its pumps at the plant; the testimony of defendants' witness that Worthington had "specifications for sale of product to the government which required asbestos use"; the absence of evidence that Worthington deviated from the government's specifications in the pumps it installed in ships during the relevant time periods; and the testimony of certain of plaintiffs that they observed the hand making of asbestos gaskets. Nor does it necessarily appear that Worthington had no duty to warn concerning the dangers of asbestos that it neither manufactured nor installed on its pumps. While it may be technically true that its pumps could run without insulation, defendants' own witness indicated that the government provided certain specifications involving insulation, and it is at least questionable whether pumps transporting steam and hot liquids on board a ship could be operated safely without insulation, which Worthington knew would be made out of asbestos (compare, Rogers v. Sears, Roebuck Co., 268 A.D.2d 245, with Rastelli v. Goodyear Tire Rubber Co., 79 N.Y.2d 289). We have considered defendant's other arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

Summaries of

Berkowitz v. A.C. and S., Inc.

Appellate Division of the Supreme Court of New York, First Department

Nov 29, 2001

288 A.D.2d 148 (N.Y. App. Div. 2001)

holding that a genuine issue of material fact existed as to whether a manufacturer had a duty to warn of the dangers of asbestos that it neither manufactured or installed

Summary of this case from Coffman v. Armstrong Int'l, Inc.

finding that, where there was evidence indicating defendant knew that asbestos insulation would likely be used on its pumps, it did not "necessarily appear that [the defendant] had no duty to warn concerning the dangers of asbestos that it neither manufactured or installed on its pumps"

Summary of this case from Osterhout v. Crane Co.

finding that the defendant owed a duty to warn regarding third-party products where evidence showed that the government provided certain specifications regarding pump insulation and that the defendant "knew [the insulation] would be made out of asbestos"

Summary of this case from Holzworth v. Alfa Laval Inc.

finding that, where there was evidence indicating defendant knew that asbestos insulation would likely be used on its pumps, it did not "necessarily appear that [defendant] had no duty to warn concerning the dangers of asbestos that it neither manufactured or installed on its pumps"

Summary of this case from Sparkman v. A.W. Chesterton Co.

In Berkowitz v. A.C. & S., Inc., 733 N.Y.S.2d 410, 288 A.D.2d 148 (N.Y.App. (1st Dept.) 2001), a New York Appellate Division court held that a pump manufacturer could be held liable for injury arising from asbestos-containing insulation manufactured and installed by third parties, where there was evidence that the manufacturer knew that insulation, were it to be used on the pump, would be made of asbestos.The issue was again considered more recently by a New York Appellate Division court in In re New York City Asbestos Litigation, 121 A.D.3d 230, 990 N.Y.S.2d 174, 191–92 (N.Y.App. (1st Dept.) 2014).

Summary of this case from Schwartz v. Abex Corp.

In Berkowitz v. A.C. & S., Inc., 733 N.Y.S.2d 410, 288 A.D.2d 148 (N.Y.App. (1st Dept.) 2001), and In re New York City Asbestos Litigation, 121 A.D.3d 230, 990 N.Y.S.2d 174, 190–92 (N.Y.App. (1st Dept.) 2014), the Appellate Division permitted plaintiffs to proceed on claims pertaining to alleged failures to warn.

Summary of this case from Schwartz v. Abex Corp.

distinguishing Rastelli v. Goodyear Tire & Rubber Co., 79 N.Y.2d 289, 582 N.Y.S.2d 373, 591 N.E.2d 222

Summary of this case from Schwartz v. Abex Corp.

In Berkowitz, the Court affirmed the denial of defendant pump manufacturer's motion for summary judgment and held that there were genuine issues of material fact because defendant may have had a duty to warn concerning the dangers of asbestos, which it had neither manufactured nor installed on its pumps.

Summary of this case from Chicano v. General Electric Company

declining to hold that pump manufacturer necessarily had no duty to warn when it knew that insulation used with its pumps would be made of asbestos and the government had specifications that required such insulation, even though pump manufacturer did not manufacture or install the insulation

Summary of this case from McKenzie v. A.W. Chesterson Co.

In Berkowitz the First Department held that a manufacturer may be liable for failure to warn of the dangers of asbestos with respect to asbestos containing products it neither manufactured nor installed, but which were used in conjunction with its equipment.

Summary of this case from Dummitt v. Chesterton (In re N.Y.C. Asbestos Litig.)

In Berkowitz, however, if that same manufacturer knew or should have known that its product would be or ought to be combined with inherently defective material for its product's intended use, that gives rise to a duty to warn of known dangers attached to such use.

Summary of this case from Sawyer v. A.C. S., Inc.

Summary of this case from Sawyer v. A.C. & S. Inc.

Berkowitz v. A.C. and S., Inc.

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Berkowitz v. A.C. and S., Inc.

Berkowitz v. A.C. and S., Inc.

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Berkowitz v. A.C. and S., Inc.

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Berkowitz v. A.C. and S., Inc.

Berkowitz v. A.C. and S., Inc.

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