Opinion
Index No. 190172/2019 MOTION SEQ. No. 001
11-21-2023
SHONTAI HOLLINGSWORTH, Plaintiff, v. A.O. SMITH WATER PRODUCTS CO., AMCHEM PRODUCTS, INC., N/K/A RHONE POULENC AG COMPANY, N/K/A BAYER CROPSCIENCE INC., BURNHAM, LLC, INDIVIDUALLY, AND AS SUCCESSOR TO BURNHAM CORPORATION, BW/IP, INC. AND ITS WHOLLY OWNED SUBSIDIARIES, CERTAINTEED CORPORATION, CLYDE UNION, INC, COLUMBIA BOILER COMPANY OF POTTSTOWN, CRANE CO., CROSBY VALVE LLC, CROWN BOILER CO., F/K/A CROWN INDUSTRIES, INC, DEAN PUMP DIVISION, DOMCO PRODUCTS TEXAS, INC, FLOWSERVE US, INC. SOLELY AS SUCCESSOR TO ROCKWELL MANUFACTURING COMPANY, EDWARD VALVE, INC. NORDSTROM VALVES, INC. EDWARD VOGT VALVE COMPANY, AND VOGT VALVE COMPANY, FMC CORPORATION, INDIVIDUALLY AND SUCCESSOR TO COFFIN, GARDNER DENVER, INC, GENERAL ELECTRIC COMPANY, ITT LLC., INDIVIDUALLY AND AS SUCCESSOR TO BELL & GOSSETT AND AS SUCCESSOR TO KENNEDY VALVE MANUFACTURING CO., INC., KEELER-DORR-OLIVER BOILER COMPANY, KOHLER CO, MCWANE INC. AND IT'S WHOLLY OWNED SUBSIDIARY CLOW VALVE CO., PEERLESS INDUSTRIES, INC, PFIZER, INC. (PFIZER), RILEY POWER INC, ROCKWELL AUTOMATION, INC., AS SUCCESSOR IN INTEREST TO ALLEN- BRADLEY COMPANY, LLC, ROPER PUMP COMPANY, SLANT/FIN CORPORATION, TACO, INC, THE NASH ENGINEERING COMPANY, U.S. RUBBER COMPANY (UNIROYAL), UNION CARBIDE CORPORATION, VIKING PUMP, INC, WEIL-MCLAIN, A DIVISION OF THE MARLEY-WYLAIN COMPANY, A WHOLLY OWNED SUBSIDIARY OF THE MARLEY COMPANY, LLC, Defendant.
Unpublished Opinion
DECISION + ORDER ON MOTION
PRESENT: HON. ADAM SILVERA Justice
The following e-filed documents, listed by NYSCEF document number (Motion 001) 141, 142, 143, 144, 145, 146, 147, 148, 149, 150, 151, 152, 153, 157, 158, 159, 160, 161, 162, 163, 164, 165, 166, 167, 168, 169, 170, 176 were read on this motion to/for SUMMARY JUDGMENT(AFTER JOINDER
Upon the foregoing documents, it is ordered that the instant motion for summary judgment seeking dismissal of this action, pursuant to CPLR §3212, is decided in accordance with the decision below.
Here, defendant McWane, Inc. on behalf of its unincorporated division Clow Valve Company ("Clow") files a motion for summary judgment seeking to dismiss this action on the basis that no Clow product could have caused plaintiff-decedent Willie Hollingsworth's ("Mr. Hollingsworth") mesothelioma. See Memorandum of Law in Support of Motion for Summary Judgment By Defendant McWane, Inc., p. 2-3. Defendant Clow argues that plaintiffs testimony was insufficient to identify any Clow valves as a source of asbestos exposure. See id.
Plaintiff opposes, highlighting Mr. Hollingsworth's clear and unequivocal testimony identifying Clow valves as a source of asbestos exposure and noting that defendant Clow has failed to submit any expert report in support of their claims. See Affirmation in Opposition to Defendant McWane Inc.'s Motion for Summary Judgment, p. 3. Defendant replies, reidentifying uncertainties in plaintiffs testimony regarding identification of Clow valves and noting the affidavit from its corporate representative. See Reply Brief of McWane, Inc. In Support of Its Motion for Summary Judgment, p. 9-13.
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 Clow 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.
Here, defendant Clow relies heavily on the affidavit of their employee representative, Doug Peirce, to establish that a Clow valve could not have been in the boiler room as identified by Mr. Hollingsworth as his primary place of exposure. See Notice of Motion, Affidavit of Douglas Peirce, dated Sept. 13, 2021. Mr. Peirce's eight-sentence affidavit is a general one and does not establish with certainty that a Clow valve could not have been in use at the time of Mr. Hollingsworth's exposure. Moreover, defendant Clow proffers no other evidence that Mr. Hollingsworth's description could not have applied to a Clow valve or that Clow valves did not contain asbestos.
Thus, defendant Clow has failed to meet its burden to establish that its products could not have been the cause of plaintiffs illness. See Reid v Georgia-Pacific Corp., supra.
Furthermore, as a reasonable juror could decide that asbestos exposure from a Clow valve was a contributing cause of Mr. Hollingsworth's illness, sufficient issues of fact exist to preclude summary judgment.
Accordingly, it is
ORDERED that defendant Clow'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.