Opinion
Index No. 190143/2020 Motion Seq. No. 003
11-06-2023
GERALD PALMIERI, Plaintiff, v. A.O. SMITH WATER PRODUCTS CO, ABB, INC. INDIVIDUALLY AND AS SUCCESSOR IN INTEREST TO ITE CIRCUIT BREAKERS, INC, AERCO INTERNATIONAL, INC, AMCHEM PRODUCTS, INC., N/K/A RHONE POULENC AG COMPANY, N/K/A BAYER CROPSCIENCE INC, BMCE INC., F/K/A UNITED CENTRIFUGAL PUMP, BURNHAM, LLC, INDIVIDUALLY, AND AS SUCCESSOR TO BURNHAM CORPORATION, CBS CORPORATION, F/K/A VIACOM INC., SUCCESSOR BY MERGER TO CBS CORPORATION, F/K/A WESTINGHOUSE ELECTRIC CORPORATION, COLUMBIA BOILER COMPANY OF POTTSTOWN, CRANE CO, CROSBY VALVE LLC, EATON CORPORATION, INDIVIDUALLY AND AS SUCCESSOR -IN-INTEREST TO CUTLER-HAMMER, INC, FLOWSERVE US, INC. INDIVIDUALLY AND SUCCESSOR TO ROCKWELL MANUFACTURING COMPANY, EDWARD VALVE, INC., NORDSTROM VALVES, INC., EDWARD VOGT VALVE COMPANY, AND VOGT VALVE COMPANY, FULTON BOILER WORKS, INC, GENERAL ELECTRIC COMPANY, GOULDS PUMPS LLC, GOULD ELECTRONICS INC, HARSCO CORPORATION, AS SUCCESSOR TO PATTERSON-KELLEY COMPANY, INC., INDIVIDUALLY AND D/B/A PATTERSON-KELLEY, HONEYWELL INTERNATIONAL, INC., F/K/A ALLIED SIGNAL, INC. / BENDIX, ITT LLC., INDIVIDUALLY AND AS SUCCESSOR TO BELL &GOSSETT ANDAS SUCCESSOR TO KENNEDY VALVE MANUFACTURING CO., INC, MORSE TEC LLC.PB HEAT LLC, INDIVIDUALLY AND AS SUCCESSOR IN INTEREST TO PEERLESS INDUSTRIES, PFIZER, INC. (PFIZER), RHEEM MANUFACTURING COMPANY, SIEMENS INDUSTRY, INC., SUCCESSOR IN INTEREST TO SIEMENS ENERGY &AUTOMATION, INC, U.S. RUBBER COMPANY (UNIROYAL), UNION CARBIDE CORPORATION, UTICA BOILERS, INC., INDIVIDUALLY AND AS SUCCESSOR TO UTICA RADIATOR CORPORATION, WEIL-MCLAIN, A DIVISION OF THE MARLEY-WYLAIN COMPANY, A WHOLLY OWNED SUBSIDIARY OF THE MARLEY COMPANY, LLC, FOSTER WHEELER, L.L.C., BW/IP, INC. AND ITS WHOLLY OWNED SUBSIDIARIES, PORT AUTHORITY OF NEW YORK AND NEW JERSEY, Defendant.
Unpublished Opinion
PART 13
MOTION DATE 04/25/2023
DECISION + ORDER ON MOTION
HON. ADAM SILVERA, JUDGE
The following e-filed documents, listed by NYSCEF document number (Motion 003) 138, 139, 140, 141, 142, 143, 144, 145, 210, 211,212, 213, 214, 215, 216, 217, 218, 219, 220, 221, 222, 223, 224, 226, 227 were read on this motion to/for JUDGMENT - SUMMARY.
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 Crosby Valve, LLC ("Crosby") moves to dismiss this action on the grounds that plaintiff Gerald Palmieri ("Mr. Palmieri") was not exposed to asbestos from any Crosby product and that Crosby had no duty to warn regarding asbestos-containing insulation used on its valves. In opposition, plaintiff highlights Mr. Palmieri's clear and unequivocal testimony identifying Crosby as a manufacturer of asbestos-containing valves to which he was exposed. See Affirmation in Opposition to Defendant Crosby's Motion for Summary Judgment, p. 3-5. Plaintiff also cites to the deposition of defendant's corporate representative as well as documentary evidence to indicate Crosby's knowledge and recommendation of asbestoscontaining insulation to be used with their valves. See id. at p. 6-8.
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". H ineerad v Vevr 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 Daunian 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).
With respect to plaintiffs deposition testimony, the Appellate Division, First Department, has held 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 witnesses' 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." Dallas v W.R. Grace and Co., 225 A.D.2d 319, 321 (1st Dep't 1996) (internal citations omitted).
The Court finds that Mr. Palmieri provided unequivocal testimony identifying defendant Crosby products as a source of his asbestos exposure and that defendant Crosby's corporate representative and historical Crosby catalogue confirmed the presence and circulation of Crosby's asbestos-containing products. See Affirmation in Opposition, supra, p. 6-8. Thus, defendant Crosby has failed to "establish that its products could not have contributed to the causation of plaintiff s injury." Reid v Georgia-Pacific Corp., supra. 1
As conflicting evidence has been presented herein and a reasonable juror could decide that Mr. Palmieri was exposed to asbestos from the use of Crosby products, and that Crosby was aware of and recommended the use of asbestos-containing insulation with its valves, sufficient issues of fact exist to preclude summary judgment.
Accordingly, it is
ORDERED that defendant Crosby'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.