Opinion
Index No. 190130/222 Motion Seq. No. 005
01-08-2024
MARIO CALIGIURI, SUSAN CALIGIURI, Plaintiff, v. A.O. SMITH CORPORATION, AERCO INTERNATIONAL, INC., All ACQUISITION LLC, BAKERS PRIDE OVEN CO., INC., BAKERS PRIDE OVEN CO. LLC BMCE INC., BRYAN STEAM LLC, BURNHAM LLC, CARRIER CORPORATION, CRANE CO., DAV CORPORATION, DAVID FABRICATORS OF NEW YORK, INC., ECR INTERNATIONAL, INC., FORT KENT HOLDINGS INC., FOSTER WHEELER ENERGY CORPORATION, GENERAL ELECTRIC COMPANY, GREENE, TWEED & CO., INC., INDUSTRIAL HOLDINGS CORPORATION, INTERNATIONAL COMFORT PRODUCTS LLC, ITT LLC, JOHN CRANE, INC., KOHLER COMPANY, LENNOX INDUSTRIES, INC., MORSE TEC LLC, OLYMPIC GLOVE & SAFETY CO., INC., PARAMOUNT GLOBAL, QCP, INC., UNION CARBIDE CORPORATION, UTICA BOILERS, INC., WEIL-MCLAIN INC., JOHN DOE 1 THROUGH JOHN DOE 75 Defendant.
Unpublished Opinion
MOTION DATE 10/24/2023
PRESENT: HON. ADAM SILVERA, Justice
DECISION + ORDER ON MOTION
ADAM SILVERA, J.S.C.
The following e-filed documents, listed by NYSCEF document number (Motion 005) 189, 190, 191, 192, 193, 194, 195, 196, 197, 198, 199, 200, 201,202, 203, 204, 205, 206, 207, 208, 209, 210, 211,212, 213, 214, 215, 224, 225, 257, 258, 259, 260, 261,262, 263, 264, 265, 266, 267 were read on this motion to/for JUDGMENT - SUMMARY.
Upon the foregoing documents, it is ordered that the instant motion for summary judgment seeking an order to dismiss is denied for the reasons set forth below.
Here, defendant Olympic Glove &Safety Co., Inc. ("Olympic") moves for summary judgment seeking to dismiss this action on the grounds that plaintiffs exposure to asbestos from Olympic-brand gloves during the course of his work as a welder in the 1970s was of insufficient quantity to have caused illness. Defendant Olympic offers an expert report in support of the finding that exposure to asbestos from Olympic gloves would not have caused plaintiffs mesothelioma.
In opposition, plaintiff highlights plaintiff Mario Caligiuri's extensive exposure to asbestos in Olympic brand gloves at a high frequency and for many years. Further, plaintiff offers conflicting expert opinions regarding Mr. Caligiuri's exposure to Olympic gloves and its causal connection to his mesothelioma. Plaintiff additionally notes that moving defendant has not offered any medical expert to opine on medical causation, and that Olympic does not dispute its sale of asbestos-containing gloves from approximately the 1920s-1980s.
The Court notes that summary judgment is a drastic remedy and should only be granted if the moving party has sufficiently established that it is warranted as a matter of law. See Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324 (1986). "The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case". Winegrad v New York University Medical Center, 64 N.Y.2d 851, 853 (1985). Despite the sufficiency of the opposing papers, the failure to make such a showing requires denial of the motion. See id. at 853.
Additionally, summary judgment motions should be denied if the opposing party presents admissible evidence establishing that there is a genuine issue of fact remaining. See Zuckerman v City of New York, 49 N.Y.2d 557, 560 (1980). "In determining whether summary judgment is appropriate, the motion court should draw all reasonable inferences in favor of the nonmoving party and should not pass on issues of credibility." Garcia v J.C. Duggan, Inc., 180 A.D.2d 579, 580 (1st Dep't 1992), citing Dauman Displays, Inc. v Masturzo, 168 A.D.2d 204 (1st Dep't 1990). The court's role is "issue-finding, rather than issue-determination". Sillman v Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 404 (1957) (internal quotations omitted). As such, summary judgment is rarely granted in negligence actions unless there is no conflict at all in the evidence. See Ugarriza v Schmieder, 46 N.Y.2d 471, 475-476 (1979). Furthermore, the Appellate Division, First Department has held that on a motion for summary judgment, it is moving defendant's burden "to unequivocally establish that its product could not have contributed to the causation of plaintiffs injury". Reid v Georgia-Pacific Corp., 212 A.D.2d 462, 463 (1st Dep't 1995).
The appropriate standard at summary judgment for moving defendant Olympic can be found in Dyer v Amchem Products Inc., 207 A.D.3d 408, 409 (1st Dep't 2022). In Dyer, defendants were granted summary judgment not by "simply argu[ing] that plaintiff could not affirmatively prove causation" but by "affirmatively prov[ing], as a matter of law, that there was no causation." Id. The Appellate Division, First Department, recently affirmed this Court's decision in Sason v Dykes Lumber Co., Inc., et. al., 2023 NY Slip Op 05796 (1st Dep't 2023), stating that "the parties' competing causation evidence constituted the classic 'battle of the experts'" sufficient to raise a question of fact, and to preclude summary judgment.
Here, defendant Olympic fails to dispute that they sold asbestos-containing gloves for the use and at the time period described by Mr. Caligiuri as the source of his exposure. They solely offer the opinion of an industrial hygienist as to the levels of exposure and the general relationship to the causation of mesothelioma. Defendant Olympic has failed to proffer any expert report as to the medical causation relevant to the instant plaintiff. This is insufficient to meet defendant's burden under Dyer and Reid, supra. Given that plaintiff has established defendant Olympic did sell asbestos-containing gloves matching Mr. Caligiuri's exposure, use, timeline, and description, and that plaintiff has offered conflicting evidence regarding causation, sufficient issues of fact remain as to preclude summary judgment.
Accordingly, it is
ORDERED that defendant Olympic's motion for summary judgment is denied in its entirety; and it is further
ORDERED that within 30 days of entry, plaintiff shall serve a copy of this decision/order upon all parties with notice of entry.
This constitutes the Decision/Order of the Court.