Opinion
Index No. 190277/2019 Motion Seq. No. 002
12-12-2023
JOSIP L. RADOVIC, Plaintiff, v. AMCHEM PRODUCTS, INC., N/K/A RHONE POULENC AG COMPANY, N/K/A BAYER CROPSCIENCE INC, AMERICAN BILTRITE INC, BMCE INC., F/K/A UNITED CENTRIFUGAL PUMP, CERTAINTEED CORPORATION, CRANE CO, DOMCO PRODUCTS TEXAS, INC.,EMPIRE ACE INSULATION MFG. CORP, GENERAL ELECTRIC COMPANY, GOULDS PUMPS LLC, GRINNELL LLC, HONEYWELL INTERNATIONAL, INC., F/K/A ALLIED SIGNAL, INC. / BENDIX, IMO INDUSTRIES, INC, INTERNATIONAL PAPER COMPANY, INDIVIDUALLY AND AS SUCCESSOR TO CHAMPION INTERNATIONAL CORPORATION, AS SUCCESSOR TO UNITED STATES PLYWOOD CORPORATION, ITT LLC., INDIVIDUALLY AND AS SUCCESSOR TO BELL & GOSSETT AND AS SUCCESSOR TO KENNEDY VALVE MANUFACTURING CO., INC, MANNINGTON MILLS, INC, PFIZER, INC. (PFIZER), U.S. RUBBER COMPANY (UNIROYAL), UNION CARBIDE CORPORATION, WEYERHAEUSER COMPANY, GOODYEAR CANADA, INC., KAISER GYPSUM COMPANY, INC., THE GOODYEAR TIRE AND RUBBER COMPANY, Defendant.
Unpublished Opinion
MOTION DATE 01/05/2023
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 002) 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 117, 118, 119, 120, 121, 122, 123, 124, 125 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 The Goodyear Tire &Rubber Company ("Goodyear") moves for summary judgment to dismiss this action on the grounds that plaintiff Josip L. Radovic ("Mr. Radovic") did not identify Goodyear as a manufacturer of any asbestos-containing products he was exposed to during his work as a laborer installing floor tiles in various buildings in the Rockefeller Center complex from approximately 1970 to 1979. Moving defendant's motion rests entirely upon challenging plaintiffs evidence implicating defendant Goodyear as a manufacturer in Mr. Radovic's asbestos exposure. See Memorandum of Law in Support of The Goodyear Tire and Rubber Company's Motion for Summary Judgment, p. 4-6. Specifically, plaintiff has introduced the deposition of the late Anthony Troiano from another case in which defendant Goodyear has been identified as a supplier of asbestos-containing products at Rockefeller Center locations that Mr. Radovic worked at. See Plaintiffs Opposition to Goodyear's Motion for Summary Judgment and Counter-statement of Material Facts, p. 9-10. Plaintiff opposes on the basis of the external deposition, along with some interrogatory responses from moving defendant confirming that some Goodyear products contained asbestos, arguing that such evidence raises issues of fact concerning the presence of defendant Goodyear's products in the locations and time period of Mr. Radovic's exposure, and thus, precludes summary judgment. Id. at 10. Defendant Goodyear replies, reiterating their argument that Mr. Radovic did not mention Goodyear and that the other deposition should be disregarded. Defendant Goodyear further argues that not all Goodyear products contained asbestos. See Reply Memorandum of Law in Further Support of Defendant The Goodyear Tire & Rubber Company's Motion for Summary Judgment, p. 2.
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 Goodyear 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. Radovic is a living asbestos plaintiff who is eighty-eight years old. See Plaintiffs Opposition, supra, p. 2. He was deposed three years ago, as an eighty-five-year-old lung cancer patient, about specific details of his work history occurring between forty and fifty years ago. ZJ. at 2-3. In his deposition testimony, Mr. Radovic provided clear and unequivocal testimony regarding his work history from approximately 1970 through 1979 in that he worked "all around Rockefeller center" and was with Mr. Troiano "almost every day". Id. at 3-4, 8. He further stated in his deposition testimony that he was frequently around flooring work and saw boxes of tiles that said "asbestos" on them. Id. at p. 5-7. The Appellate Division, First Department has affirmed denials of summary judgment in similar instances. In Koulermos v A.O. Smith Water Prods., 137 A.D.3d 575, 576 (1st Dep't 2016), the court noted that defendant's "contention rested on evidence of plaintiffs inability to remember precisely when he worked at the facility" and stated that "pointing to gaps in an opponent's evidence is insufficient to demonstrate a movant's entitlement to summary judgment". Moreover, the appellate court stated that the defendants affirmatively "failed to present evidence...[regarding] when their employees were present at the facility and whether or not those employees used asbestos-containing products". Id. Plaintiffs have met the standard set forth by the Appellate Division to sufficiently raise a question of fact. The weight of the evidence is for the trier of fact to determine, but for purposes of summary judgment, the depositions raise an issue of fact.
Further, defendant Goodyear makes no attempt to meet their initial burden on a motion for summary judgment by proving that their products were not located at any of Mr. Radovic's worksites or that they did not contain asbestos. Thus, moving defendant has failed to "establish that its products could not have contributed to the causation of plaintiffs injury." Reid v Georgia-Pacific Corp., supra.
As conflicting evidence has been presented herein, and a reasonable juror could determine that Mr. Radovic was exposed to asbestos-containing products manufactured by defendant Goodyear from his work at various Rockefeller Center buildings, and that such exposure could have contributed to his illness, sufficient issues of fact exist to preclude summary judgment.
Accordingly, it is
ORDERED that defendant Goodyear'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.