Opinion
Index No. 190093/2020 Motion Seq. No. 005 Third-Party Index No. 595297/2021
01-05-2024
JOSEPH PIRA, AS ADMINISTRATOR FOR THE ESTATE OF GIACINTO PIRA AND MARIA PIRA, INDIVIDUALLY, Plaintiff, v. AIR & LIQUID SYSTEMS CORPORATION, AS SUCCESSOR-BY-MERGER TO BUFFALO PUMPS, INC, AMCHEM PRODUCTS, INC., N/K/A RHONE POULENC AG COMPANY, N/K/A BAYER CROPSCIENCE INC, AMERICAN OPTICAL CORPORATION, BW/IP, INC. AND ITS WHOLLY OWNED SUBSIDIARIES, CBS CORPORATION, F/K/A VIACOM INC., SUCCESSOR BY MERGER TO CBS CORPORATION, F/K/A WESTINGHOUSE ELECTRIC CORPORATION, CRANE CO, DCO LLC F/K/A DANA COMPANIES, LLC, ELECTROLUX HOME PRODUCTS, INC. INDIVIDUALLY, AND AS SUCCESSOR TO TAPPAN AND COPES-VULCAN, EMPIRE-ACE INSULATION MFG. CORP, FLOWSERVE US, INC. INDIVIDUALLY AND SUCCESSOR TO ROCKWELL MANUFACTURING COMPANY, EDWARD VALVE, INC., NORDSTROM VALVES, INC., EDWARD VOGT VALVE COMPANY, AND VOGT VALVE COMPANY, FMC CORPORATION, ON BEHALF OF ITS FORMER CHICAGO PUMP & NORTHERN PUMP BUSINESSES, GARDNER DENVER, INC, GENERAL ELECTRIC COMPANY, GOODYEAR CANADA, INC, GOULDS PUMPS LLC, GUARD-LINE, INC, GUTHRIE DELAWARE, INC, HOBART BROTHERS COMPANY, HONEYWELL INTERNATIONAL, INC., F/K/A ALLIED SIGNAL, INC. / BENDIX, IMO INDUSTRIES, INC, ITT LLC., INDIVIDUALLY AND AS SUCCESSOR TO BELL & GOSSETT AND AS SUCCESSOR TO KENNEDY VALVE MANUFACTURING CO., INC, JENKINS BROS, MCCORD CORPORATION, MINE SAFETY APPLIANCES COMPANY, MORSE TEC LLC, PFIZER, INC. (PFIZER), PREST-O-SALES & SERVICES, INC, STEEL GRIP SAFETY APPAREL COMPANY, INC, STEEL GRIP, INC., STEEL GRIP, INC., A/K/A VOORHEES, INC INDIVIDUALLY AND AS SUCCESSOR-IN-INTEREST TO STEEL GRIP SAFETY APPAREL COMPANY. INC, TENNECO AUTOMOTIVE OPERATING COMPANY INC, THE BOC GROUP, INC, THE GOODYEAR TIRE AND RUBBER COMPANY, U.S. RUBBER COMPANY (UNIROYAL), UNION CARBIDE CORPORATION, WARREN PUMPS, LLC, Defendant. STEEL GRIP, INC Plaintiff, v. TOURISTIC UNION INTERNATIONAL, AG, HAPAG-LLOYD CRUISES, A TUI CRUISES GMBH COMPANY Defendant.
Unpublished Opinion
MOTION DATE 10/24/2023
PRESENT: HON. ADAM SILVERA JUSTICE
DECISION + ORDER ON MOTION
Adam Silvera, Judge
The following e-filed documents, listed by NYSCEF document number (Motion 005) 225, 226, 227, 228, 229, 230, 231,232, 233, 234, 235, 236, 237, 238, 239, 246, 248, 298, 299, 300, 301, 302, 303, 304, 305, 306, 307, 308, 309, 310, 311, 315, 333, 367, 368, 369, 370 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 denied for the reasons set forth below.
Here, defendant Mine Safety Appliances Company, LLC ("MSA") moves for summary judgment to dismiss this action on the grounds that plaintiff-decedent. Giacinto Pira ("Mr. Pira") did not establish any confirmed contact with or exposure from MSA manufactured gloves during the course of his work as a seaman in the 1960s and as a welder in the 1970s and 1980s. Moving defendant's motion relies largely upon Mr. Pira's lack of identification of specific logos and materials of the gloves. Moving defendant further proffers expert opinion to suggest that plaintiff cannot establish causation from asbestos in MSA gloves to Mr. Pira's illness.
In opposition, plaintiff highlights Mr. Pira's clear and unequivocal testimony identifying MSA as a manufacturer of protective gloves he worked with on several occasions and offers conflicting expert testimony regarding causation.
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 MSA can be found in Dyer v Amchem Products Inc., 207 A.D.3d 408, 409 (1 st 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 proving], 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, the Court notes that Mr. Pira clearly identified MSA as a manufacturer several times and in various work contexts, including identification of MSA shipping boxes. See Affirmation in Opposition to Defendant MSA's Motion for Summary Judgment, p. 5-7. The ability to identify every single detail of a MSA glove is not necessary to establish plaintiffs recollection of such gloves and his exposure to such where plaintiff has clearly identified the MSA gloves. Meanwhile, moving defendant has offered no evidence to establish that their gloves were not sold to the Italian Line during this time, that their gloves did not contain asbestos, and that Mr. Pira could not have encountered their gloves and been exposed to asbestos by them. Further, moving defendant relies on Mr. Pira's recollection of his supply store as a welder to establish that he could not have purchased MSA gloves there. Here, defendant MSA fails to affirmatively prove that their gloves were not available at the relevant time period, for the use that Mr. Pira described, and that their gloves did not contain asbestos. As such, defendant has failed to meet its burden under Dyer and plaintiff has proffered sufficient testimony and evidence to raise issues of fact regarding contact with and asbestos exposure from MSA gloves.
Regarding causation, plaintiff has presented conflicting evidence regarding the amount of asbestos Mr. Pira could have been exposed to from such gloves, and whether such exposure is causally related to Mr. Pira's illness. Thus, issues of fact exist sufficient to preclude summary judgment.
Accordingly, it is
ORDERED that defendant MSA's motion to dismiss 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.