Opinion
Index No. 190093/2020 Third-Party Index No. 595297/2021 Motion Seq. No. 003
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Unpublished Opinion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, J.S.C.
The following e-filed documents, listed by NYSCEF document number (Motion 003) 193, 194, 195, 196, 197, 198, 199, 200, 201, 202, 203, 204, 205, 206, 207, 208, 247, 250, 251, 261,262, 263, 264, 265, 266, 267, 268, 269, 270, 271, 272, 273, 274, 275, 276, 316, 317 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 American Optical Corporation ("American Optical") 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 American Optical manufactured gloves during the course of his work as a seaman for the Italian Line during the 1960s. Moving defendant's motion relies upon Mr. Pira's lack of identification of the American Optical logos on the gloves worn by him (proffering an expert affidavit to affirm the presence of such logos) and no identification of asbestos dust arising from the gloves he wore. See Memorandum of Law in Support of Defendant American Optical Corporation's Motion for Summary judgment, p. 1-3.
In opposition, plaintiff highlights Mr. Pira's clear and unequivocal testimony identifying asbestos dust being emitted from the gloves and repeatedly identifying American Optical as a manufacturer of gloves he came in contact with. See Affirmation in Opposition to Defendant American Optical's Motion for Summary Judgment, p. 4-6.
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 American Optical 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 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 American Optical as a manufacturer of a product that they did, in fact, manufacture at the time period, recalled seeing their logo on supply boxes on the ship, and specifically described asbestos dust coming off the gloves as he wore them when pushing the valves. The Appellate Division, First Department, in Reid, held that "[t]he plaintiff is not required to show the precise causes of his damages, but only to show facts and conditions from which defendant's liability may be reasonably inferred". Reid, supra, at 463.
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. As such, defendant has failed to meet its burden under Dyer. Furthermore, plaintiff has offered sufficient testimony to raise issues of fact regarding asbestos exposure from American Optical gloves such that summary judgment must be denied.
Accordingly, it is
ORDERED that defendant American Optical's motion to dismiss pursuant to CPLR 3212 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.