Lane v. A.W. Chesterton Co.

Full title: BEVERLY E. LANE and SHARON A. LANE, Plaintiffs, v. A.W. CHESTERTON…

Court: Supreme Court of the State of New York, New York County

Date published: Nov 13, 2009

2009 N.Y. Slip Op. 32704 (N.Y. Sup. Ct. 2009)

Opinion

190090/08.

November 13, 2009.

DECISION ORDER

SHERRY KLEIN HEITLER, J.:

In this asbestos matter, defendant, Homasote Company ("Homasote"), move summary judgment requesting dismissal of the complaint and all cross-claims against it on the ground that plaintiffs have failed to establish that Beverly E. Lane was exposed to any asbestos-containing products manufactured, rebranded, sold, shipped, installed or distributed by Homasote. The plaintiffs oppose this application.

Plaintiff testified that he was exposed to asbestos while employed by his brother's company, Lane Plumbing, from 1968 to the mid-1970's. As part of his employment he installed heating systems in commercial and residential buildings. He recalled using Homasote boards behind boilers to protect the walls from catching fire. He described the boards as having silver paper or tinfoil glued to the outside of the board.

The defendant contends that plaintiffs have failed to establish that Mr. Lane was exposed to asbestos from a Homasote product. In support of their motion for summary judgment, defendants provide a transcript from Joseph Bronsard, a former Chief Engineer of Homasote from 1968 to 2002. He states that Homasote did not manufacture asbestos-containing products during his employment from 1968 to 2002 and that the boards used at that time were made of recycled newspaper or wood fibers. Another defense witness, Andrew Miele, a former Homasote employee from 1950 to 1991, testified that Homasote purchased and restored a product called "Sote board" from 1951 to 1966. Mr. Miele stated that the Sote board was loose, without any packaging. Defendant contends that Mr. Miele's description of the Sote board is contrary to what Mr. Lane describes. Further, defendant argues that as Mr. Lane's employment began after 1966, he could not have used an asbestos-containing product distributed by Homasote.

In moving for summary judgment, defendant Homasote has the burden of producing evidence demonstrating there is no issue of material fact that requires the determination of a factfinder (see, DiMenna Sons, Inc. v. City of New York, 301 N.Y. 118. To grant summary judgment, it must clearly appear that no material and triable issue of fact is presented (see, Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 404). Homasote has not met this burden.

Mr. Lane testified that he was exposed to asbestos from fireproof boards manufactured by Homasote. Specifically, he stated:

Q. Do you believe you were exposed to asbestos from that work?

A. From the Homasote board would be the only way.

(See, Defendant's Exhibit A, p. 269, 1.6-9.)

Q. Where did these boards go?

A. Behind the boiler, right next to the wall.

Q. So that's like a buffer between the wall and the boiler?

A. Yes, but it would be nailed, screwed right to the wall, itself.

Q Is it your testimony you believe you were exposed to asbestos just from the board?

A. Yes. We had to cut the board sometimes.

Q. What did you use to cut the board?

A. Skill saw.

Q. Do you know the brand, trade or manufacturer of this board?

A. Homasote is the only thing I know.

(See, Defendant's Exhibit A, p. 270, 1.8-23.)

It is not disputed that these boards were used in conjunction with the installation of boilers. Further, although defendant does not concede that the Sote board contained asbestos, plaintiff provides the court with an advertisement for a product called "Sote Asbestos Board".

In this case, defendant's assertion that the Sote board was not packaged and Mr. Lane's identification of defendant's packaging, creates a triable issue of material fact for the factfinder to determine. In Dollas v. W.R. Grace and Company, 225 A.D.2d 319 (1^st Dept., 1996), the First Department stated that "[t]he deposition testimony of a litigant is sufficient to raise an issue of fact so as to preclude the grant of summary judgment dismissing the complaint." The assessment of the value of a witness' testimony constitutes an issue for resolution by the trier of fact and any apparent discrepancy between the testimony and the evidence of record goes only to the weight and not the admissibility of the testimony. Dollas, supra, at 321.

Finally, even if defendant ceased distributing Sote board in 1966, it is not determinative of whether or not Mr. Lane used this product. It is well established that products may be warehoused and not used for years. In Taylor v. A.C.S., Inc., 306 A.D.2d 202, 202 (1^st Dept. 2003), the court held for the nonmoving party, because even though AO stopped manufacturing asbestos products prior to the plaintiff's employment as indicated by plaintiff's social security records, "AO failed to proffer any evidence in rebuttal that its asbestos products were not being used residually in the marketplace by various companies in the 1980s and 1990s, after it ceased manufacturing and selling such products." Id. at 202-03.

Therefore, it is hereby

ORDERED that the defendant's motion for summary judgement is denied.

This shall constitute the decision and order of the court.