Opinion
Index No. 190085/2021 Motion Seq. No. 001
08-02-2024
PAUL SCANDALIATO, Plaintiff, v. ABB, INC, AIR & LIQUID SYSTEMS CORPORATION, ARMSTRONG INTERNATIONAL, INC. AURORA PUMP COMPANY, BEAZER EAST INC, BELDEN WIRE &CABLE COMPANY, LLC.BW/IP, INC., CLARK-RELIANCE CORPORATION, CLEAVER-BROOKS INC. CONVAL, INC.; COPES-VULCAN INC., CRANE CO., CRANE ENVIRONMENTAL, INC.CRANE PUMPS &SYSTEMS, INC., CRESCENT ELECTRIC SUPPLY COMPANY, INC. OF NEW YORK; CROSBY VALVE, LLC, DAV CORPORATION, EATON CORPORATION, ELLIOTT COMPANY, ERICSSON, INC., FLOWSERVE US, INC. FMC CORPORATION, GARDNER DENVER, INC. GENERAL CABLE CORPORATION, GEROSA INCORPORATED, GOULD ELECTRONICS, INC, GOULD PUMPS, LLC, GRAYBAR ELECTRIC COMPANY INC.; GRINNELL LLC, ITT LLC, INDIVIDUALLY, DOING BUSINESS AS AND SUCCESSOR TO ITT CORPORATION, BELL & GOSSETT COMPANY AND/OR BELL & GOSSETT DIVISION, FLOJET CORPORATION, THE HOFFMAN SPECIALTY MANUFACTURING COMPANY, ITT FLUID PRODUCTS CORPORATION, J.R. CLARKSON COMPANY, THE, LLC, JENKINS BROS., JOHN E. POTENTE & SONS, INC., KENNEDY ELECTRICAL SUPPLY CORP.; MERITOR, INC.,MINE SAFETY APPLIANCES COMPANY, LLC. MUNACO SEALING SOLUTIONS, INC., NASH ENGINEERING COMPANY, THE, OKONITE COMPANY, INC.,THE; OLYMPIC GLOVE AND SAFETY CO., INC.; RSCC WIRE & CABLE LLC, SCHNEIDER ELECTRIC USA, INC., SIEMENS INDUSTRY, INC., SPIRAX SARCO, INC, TREADWELL CORPORATION, TRIANGLE PWC, INC.UNION CARBIDE CORPORATION, VELAN VALVE CORPORATION.; VIACOMBCBS, INC.; VIKING PUMP INC.; WARREN PUMPS LLC, WEIL-MCLAIN, WEIR VALVES & CONTROLS USA, INC.WILLIAM POWELL COMPANY, THE;, YUBA HEAT TRANSFER LLC, ZY-TECH GLOBAL INDUSTRIES, INC., AERCO INTERNATIONAL, INC. BMCE, INC. FORMERLY KNOWN AS UNITED CENTRIFUGAL PUMPS, JOHN DOE 1 THROUGH JOHN DOE 75 (FICTITIOUS) Defendant.
Unpublished Opinion
MOTION DATE 04/29/2024.
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 001) 250, 251, 252, 253, 254, 255, 256, 259, 269, 270, 271, 272, 273, 274, 275, 276 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 denied for the reasons set forth below.
Here, defendant Kennedy Electrical Supply Corp. (Kennedy) moves for summary judgment seeking to dismiss this action on the grounds that plaintiff was not exposed to asbestos from any Kennedy products during the course of his employment with Con Edison from 1963 through 2005 based on his deposition testimony. Plaintiff opposes, arguing that Kennedy has failed to meet their prima facie burden on causation that exposure to Kennedy's products could not have resulted in plaintiffs diagnosis of lung cancer. Kennedy replies.
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 Georgia-Pacific Corp., 212 A.D.2d 462, 463 (1st Dep't 1995).
The appropriate standard at summary judgment for moving defendant Kennedy 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., 221 A.D.3d 491 (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. Sason, 221 A.D.3d at 492.
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).
Here, Kennedy has failed to affirmatively establish that plaintiffs alleged exposure to asbestos from Kennedy products could not have contributed to plaintiffs illness, but rather points to gaps in plaintiffs proof. Kennedy contends that plaintiff recanted his identification of Kennedy as an asbestos-containing product in his deposition testimony and thus cannot establish causation. See Memorandum of Law of Defendant Kennedy Electrical Supply Corp, in Support of its Motion for Summary Judgment, p. 2. However, as correctly argued by plaintiff, an issue of fact exists as to whether plaintiff merely misidentified Kennedy as a supplier of wire and cable specifically, rather than all asbestos products. See Memorandum of Law in Opposition to Kennedy Electrical Supply Corp.'s Motion for Summary Judgment, p. 2. Plaintiff also identified Kennedy as a supplier in his Answer to Interrogatories. See Memo in Opposition, supra, at p. 3.
Additionally, Kennedy has wholly failed to meet its initial burden on a motion for summary judgment. Kennedy has not submitted any evidence that its products did not contain asbestos and could not have caused asbestos exposure. Thus, Kennedy has failed to "establish that its products could not have contributed to the causation of plaintiffs injury." Reid v Georgia-Pacific Corp., supra. Plaintiff has raised sufficient issues of fact to preclude summary judgment and moving defendant has not met their burden as set forth by the Appellate Division in Reid and Dyer, supra. As a reasonable juror could determine that asbestos exposure from Kennedy's products was a contributing cause of plaintiffs lung cancer, sufficient issues of fact exist to preclude summary judgment.
Accordingly, it is
ORDERED that defendant Kennedy Electrical Supply Corp.'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.