Opinion
Index No. 190215/2020 Motion Seq. No. 001
11-21-2023
KEVIN WOODS, AS SUCCESSOR IN INTEREST TO THE ESTATE OF PAUL R. WOODS, Plaintiff, v. AMCHEM PRODUCTS, INC., N/K/A RHONE POULENC AG COMPANY, N/K/A BAYER CROPSCIENCE INC, GENERAL ELECTRIC COMPANY, PFIZER, INC. (PFIZER), UNION CARBIDE CORPORATION, U.S. RUBBER COMPANY (UNIROYAL), VICTORY REAL ESTATE DEVELOPMENT CORPORATION (VRED), VICTORY REAL ESTATE DEVELOPMENT CORPORATION, INDIVIDUALLY AND AS SUCCESSOR IN INTEREST TO AND FORMERLY KNOWN AS VICTORY CARRIERS, INC., Defendant.
Unpublished Opinion
PRESENT: HON. ADAM SILVERA, Justice
DECISION+ ORDER ON MOTION
HON. ADAM SILVERA, JUSTICE
The following e-filed documents, listed by NYSCEF document number (Motion 001) 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 28, 29, 30, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 47, 48 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 Victory Real Estate Development Corporation ("VRED") moves for summary judgment to dismiss this action on the grounds that plaintiff-decedent, Paul Woods ("Mr. Woods") has not established that he was exposed to any asbestos or asbestos-containing products during his work on defendant's SS Lynn Victory ship in the 1960s. See Memorandum of Law in Support of Defendant Victory Real Estate Development Corporation's Motion for Summary Judgment, p. 5-6. In opposition, plaintiff offers multiple affidavits and evidence based on the review of records from other "Victory" class ships, all built contemporaneously to the SS Lynn Victory at issue herein. Such evidence and affidavits indicate the presence of asbestos-containing products on all "Victory" ships and the necessary exposure to asbestos involved in working aboard any such ship. See Affirmation in Opposition to Defendant, Victory Real Estate Development Corporation's. Motion for Summary Judgment, p. 16-20. Defendant VRED replies, noting that it is a successor in interest to "Victory Carriers," the actual owner and former operator of the SS Lynn Victory. Defendant emphasizes that Victory Carriers went out of business prior to merging with VRED, and that moving defendant VRED has never owned or operated any ships itself. Defendant also reiterates that plaintiff must prove the existence of asbestos-containing materials on the SS Lynn Victory and prove that such exposure caused Mr. Woods' illness. Finally, defendant argues that plaintiffs affidavits should be disregarded due to being out-of-state. See Reply Memorandum of Law in Further Support of Defendant Victory Real Estate Development Corporation's Motion for Summary Judgment, p. 1-3.
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 VRED 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 provfing], as a matter of law, that there was no causation." Id.
Here, plaintiff highlights the doctrine in Noseworthy v City of New York, 298 NY 76, 80 (1948) wherein the Court of Appeals stated that "in a death case a plaintiff is not held to as high a degree of proof of the cause of action as where an injured plaintiff can himself describe the occurrence". The Appellate Division, First Department applied Noseworthy to an asbestos action in Taylor v A.C.&S, Inc., et al., 304 A.D.2d 403, 404 (1st Dep't 2003). It is unfortunate, but commonplace, in asbestos actions for a plaintiff to have passed away, and while this doctrine is not widely applied in every such matter, the difficulty is especially heightened in the instant matter where plaintiff was unable to give a de bene esse deposition or provide any form of testimony in his own case prior to his passing. In light of this, the Court finds that the lack of certificate of conformity from plaintiffs counsel regarding the out-of-state affidavits provided is a correctable defect pursuant to CPLR § 2001. See cf. JPMorgan Chase Bank v Diaz, 56 Mise. 3d 1136, 1139 (Supreme Court, Suffolk County 2017) ("a defective out-of-state affidavit, which is defective because it is not accompanied by a certificate of conformity, may be waived or cured under CPLR § 2001" if jurisdiction is not at issue). As jurisdiction is not at issue, the out-of-state affidavits are considered herein, and plaintiffs exhibits establish a question of fact regarding Mr. Woods' asbestos exposure and any causation resulting from such exposure on the SS Lynn Victory. See Affirmation in Opposition, supra, Exh. A-C.
Moreover, even if plaintiff s out-of-state affidavits were not considered, defendant VRED's motion for summary judgment would still be denied. As successor in interest to the now-defunct Victory Carriers, defendant VRED remains the proper party to this litigation. Moreover, defendant VRED offers no affirmative evidence proving that there was no asbestos aboard the SS Lynn Victory per Dyer. 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 decide that Mr. Woods was exposed to asbestos from his work on the SS Lynn Victory, 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 VRED'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.