Opinion
Index No. 190277/2019 Motion No. 003
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Unpublished Opinion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 04/21/2023
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) 131, 132, 133, 134, 135, 136, 137, 138, 139, 140, 141, 142, 143, 144, 145, 146, 147, 148, 149, 150, 151, 153, 192, 203, 204, 205, 206, 207, 208, 209, 210, 211, 212, 213, 214, 215, 216, 217, 218, 219, 220, 222, 223, 224, 225, 226 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 decided in accordance with the decision below.
Here, defendant Union Carbide Corporation ("Union Carbide") moves for summary judgment to dismiss the action on the basis that plaintiff Josip L. Radovic (Mr. Radovic) failed to identify Union Carbide as a manufacturer of any asbestos-containing products he was exposed to during the course of 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 Union Carbide as a manufacturer in Mr. Radovic's asbestos exposure. See Memorandum of Law in Support of Defendant Union Carbide Corporation's Motion for Summary Judgment, p. 9-10. Specifically, plaintiff has introduced multiple depositions from other cases in which defendant Union Carbide has been identified as a supplier of asbestos-containing products at various locations that Mr. Radovic worked at. See Plaintiffs Affirmation in Opposition to UCC's Motion for Summary Judgment and Counter-statement of Material Facts, p. 3-8. Plaintiff opposes on the basis of such external depositions, arguing that such evidence raises issues of fact concerning the presence of defendant Union Carbide's products in the locations and time period of Mr. Radovic's exposure, and thus, precludes summary judgment. Id. Defendant Union Carbide replies, reiterating their argument that Mr. Radovic did not mention Union Carbide and that the other depositions should be disregarded.
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 Union Carbide 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 prov[ing], 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 Plaintiff s Affirmation in Opposition, supra, p. 3. Despite the extenuating circumstances, Mr. Radovic provided clear and unequivocal details regarding his work history from approximately forty to fifty years ago, such that he worked at all buildings of the Rockefeller Center complex and was around workers who used joint compound to seal joints between sheetrock. Id. 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. Similarly, the First Department noted in Krok v AERCTO Int'l, Inc., et. al, 146 A.D.3d 700, 700 (1st Dep't 2017) that "reliance on the decedent's inability to identify its product as a source of his exposure to asbestos is misplaced" and that "plaintiffs raised an issue of fact by submitting evidence that defendant's asbestos-containing pumps were present on the ship to which the decedent was assigned as a boiler tender fireman." See also Affirmation in Opposition, supra, p. 7-11. 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 Union Carbide 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 Union Carbide from his work at various Rockefeller Center buildings, and that such exposure could have contributed to his fatal illness, sufficient issues of fact exist to preclude summary judgment. Accordingly, it is
ORDERED that defendant Union Carbide's motion for summary judgment on the issue of causation is denied in its entirety; and it is further
ORDERED that within 30 days of entry defendants shall serve plaintiffs with a copy of this Decision/Order with notice of entry.
This constitutes the Decision/Order of the Court.