Opinion
Index No. 190130/2022 Motion Seq. No. 004
01-09-2024
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Unpublished Opinion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 004) 175, 176, 177, 178, 179, 180, 181, 182, 183, 184, 185, 187, 227, 250, 251, 252, 253, 254, 255, 256 were read on this motion to/for DISMISS_.
Upon the foregoing documents, it is ordered that the instant motion to dismiss pursuant to CPLR 3212 is denied in accordance with the decision below.
Here, defendant QCP, Inc. f/k/a Bakers Pride Oven Company, Inc.'s ("Bakers Pride") motion for summary judgment seeking to dismiss all claims against it on the basis that it has affirmatively established that plaintiff Mario Caligiuri could not have been exposed to asbestos from a Bakers Pride product and that such product could not have caused his mesothelioma, and that moving defendant's prior motion to preclude plaintiffs' experts justifies dismissal. This Court has denied defendant's motion to preclude in accordance with its Decision/Order dated Jan. 5, 2024 (see mot. 003), removing that as a basis for dismissal.
Regarding Mr. Caligiuri's exposure, moving defendant offers expert testimony to support its position that any exposure to asbestos from scraping Bakers Pride pizza ovens would be extremely low. Moving defendant offers a secondary expert report, based on the prior report, to argue that such low levels of exposure necessarily could not have caused Mr. Caligiuri's mesothelioma.
In opposition, plaintiff highlights Mr. Caligiuri's high volume of exposure to scraping and cleaning Bakers Pride pizza ovens, and proffers two expert reports to support Mr. Caligiuri's illness being caused by yearslong exposure to such ovens.
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 Bakers Pride 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 Bakers Pride has not affirmatively established that its product could not have caused Mr. Caligiuri's illness. The study that it bases Mr. Caligiuri's estimated exposure level on does not account for the volume and timeline of exposure at issue herein which is significantly long. In fact, the study cited by defendant Bakers Pride's expert confirms that there is asbestos release from cleaning pizza ovens. Moving defendant's evidentiary support is insufficient to meet its burden on a motion for summary judgment, and as set forth by the Appellate Division in Reid and Dyer, supra. Moreover, plaintiff has offered conflicting evidence regarding causation from these levels of exposure and such, has raised sufficient issues of fact to preclude summary judgment.
Accordingly, it is
ORDERED that defendant Bakers Pride's motion for summary judgment is denied in its entirety; and it is further
ORDERED that within 30 days of entry' plaintiff shall serve all parties with a copy of this Decision/Order with notice of entry.
This constitutes the Decision/Order of the Court.