Held v A.W. Chesterton Co.

Held v A.W. Chesterton Co. 2007 NY Slip Op 05157 [41 AD3d 177] Decided on June 12, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 12, 2007
Mazzarelli, J.P., Andrias, Nardelli, Williams, Gonzalez, JJ. 1309In Re: New York City Asbestos Litigation
Index 104048/05

[*1]Claire Held, etc., Plaintiff-Appellant,

v

A.W. Chesterton Co., et al., Defendants, Sequoia Ventures Inc., formerly known as Bechtel Corp., Defendant-Respondent.




Weitz & Luxenberg, P.C., New York (Stephen J. Riegel of
counsel), for appellant.
Landman Corsi Ballaine & Ford P.C., New York (William G.
Ballaine of counsel), for respondent.

Order, Supreme Court, New York County (Helen E. Freedman, J.), entered August 14, 2006, which granted defendant-respondent's motion for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs.

Plaintiff's claim that her decedent's mesothelioma was caused by respondent engineer's issuance of insulation specifications requiring or allowing the use of asbestos at the work site, and that such specifications fell below the then-existing professional standard of care for engineers, is improperly raised for the first time on appeal (see First Intl. Bank of Israel v Blankstein & Son, 59 NY2d 436, 447 [1983]). In any event, the record establishes that months before plaintiff's decedent began working at the site in October 1972, respondent's specifications were superseded by interim insulation specifications issued by the site owner that, while indicating a preference for asbestos-free insulation, allowed for their continued use if the owner deemed no available substitute to be acceptable. These superseding specifications would also [*2]preclude any Labor Law § 200 claim against respondent based on unsafe work site conditions created by its insulation specifications. We have considered and rejected plaintiff's other arguments.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JUNE 12, 2007

CLERK