Malaney v A.C.&S., Inc.

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Malaney v A.C.&S., Inc. 2011 NY Slip Op 33467(U) December 9, 2011 Sup Ct, NY County Docket Number: 107492/00 Judge: Sherry Klein Heitler Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. SHERRY KLEIN HEITLER - PART Justice 30 Index Number : 107492/2000 MALANEY, ANGELA vs. A.C. AND S.,INC MOTION DATE MOTION SEQ. NO. SEQUENCE NUMBER : 001 Qb ! SUMMARY JUDGMENT ,were h a d on thl8 motion tonor The following papers, numbered I to Notlce of MotlonlOrdorto Show Came Answering Affldavlts -AffldavlG - Exhlbltr IW a ) . IW a ) . - Exhibits Replylng Affldavih /LO(8)- Upon the fomgolng papers, It Is ordered that thlr motion Is , eb u j y p I 1 FILED y NEW "WHK COUNTY CLEHK'S OFFICE J.S.C. 0 NON-FINAL DISPOSITION 0OTHER r]GRANTED IN PART 0SUBMIT ORDER 0FIDUCIARY APPOINTMENT 0REFERENCE 0 CASE DISPOSED ..................................................................... 2. CHECK AS APPROPRIATE: ........................... MOTION IS: GRANTED 0DENIED 1. CHECK ONE: 3. CHECK IF APPROPRIATE: ................................................ SEllLE ORDER DO NOT POST [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW Y O N : PART 30 _ _ _ _ - _ _ _ _ l l l - - - - - _ _ I - - - - - - - - r - - - - - - - - - - - - - X ANGELA MALANEY, as Executrix for the Estate of JERRY MALANEY, Index No. 107492/00 Motion Seq.001 DECISION AND ORDER Plaintiff, -against- FILED A.C. & S., INC., et al., DEC 1 9 2011 NEW YORK CLERKS OFFICE In this asbestos personal injury action, defendants Goodyear Tire & Rubber Company and Goodyear Canada, Inc. (collectively, Goodyear ) move pursuant to CPLR 5 32 12 for summary judgment dismissing the complaint and all other claims asserted against it. For the reasons set forth below, Goodyear s motion is granted. BACKGROUND This action was commenced by Jerry E. Malaney, now deceased, to recover for personal injuries allegedly caused by his occupational exposure to a myriad of asbestos-containingproducts during the 1960 sand 1970 s. Plaintiff produced for deposition Mr. Robert Shively, who testified on June 16,2010 with respect to the time he worked with Mr. Malaney at the Hooker Chemical plant in Niagara Falls, New York. Mr. Shively alleged that he and the decedent were exposed to a number of different asbestos-containingproducts and equipment, including gaskets, pumps, valves, and insulation materials. Relevant to this motion is Mr. Shively s claim that the decedent was exposed to asbestos from preformed gaskets manufactured by defendant Goodyear. 1 Mr. Shively s deposition transcript is submitted a s defendant s exhibit B ( Deposition ). [* 3] On this motion, Goodyear argues that it is entitled to summary judgment because Mr. Shively alleged that plaintiffs decedent was exposed to asbestos from asbestos-containing preformed gaskets, a product it never manufactured or sold. As such, defendant submits that plaintiffs decedent could not have been exposed to asbestos fibers released from a Goodyear product. In opposition, plaintiff argues that Mr. Shively s testimony raises issues of fact as to the decedent s exposure to Goodyear gaskets sufficient to preclude summary judgment. pJ$cussIory In order to obtain summary judgment, the movant must establish its cause of action or defense sufficiently to warrant a court s directingjudgment in its favor as a matter of law, and must tender sufficient evidence to demonstrate the absence of any material issues of fact. See Zuckerman v City o New York, 49 NY2d 557,562 [1980]; CPLR 5 3212(b). Once the movant has made aprima f , facie showing, a plaintiff is then required to demonstrate that he was actually exposed to asbestos fibers released from the defendant s product. Cawein v Flintkote Con,203 AD2d 105, 106 [lst Dept 19941. The plaintiff is required to show facts and conditions from which defendant s liability may be reasonably inferred. Reid v Georgia Pacific C o p , 2 12 AD2d 462,463 [1st Dept 19951. Mere boilerplate and conclusory allegations will not suffice. Cawein, supra, 203 AD2d at 105. Goodyear submits, and plaintiff does not dispute, that the company never manufactured or sold asbestos-containingpreformed gaskets. Cf: Fiore v A. 0.Smith, Index No. 1 16446/04 (Sup. Ct. NY C y May 17,2005, n.0.r.) (plaintiffs deposition testimony that he was exposed to asbestos-containing t. preformed gaskets manufactured by Goodyear is incredible as a matter of law). The only question, therefore, is whether Mr. Shively s testimony raises a material issue of fact as to whether the decedent was exposed to asbestos-containing Goodyear sheet gaskets, which Goodyear concedes that it produced [* 4] during the relevant time period. While Mr. Shively s testimony regarding Goodyear is limited, it is nonetheless plain and unequivocal that the Goodyear gaskets as to which he testified were preformed (Deposition pp. 118-21, 138-3 9) Q: All right. So now you mentioned the gasket material. What was the -what did the gasket material look like? A: It was in a sheet. And it come in different thicknesses, from, like, an eighth inch up to five-sixteenths. And Chesterton was written on it. And then there was another one from Goodyear. Goodyear mostly wm the formed gaskets. Q: Preformed? A: Yes. Q: And what w s the Chesterton material? a A: It was a sheet. **** Q: And where were the Garlock asbestos-containing gaskets used? A: Well, if you re on midnight shift and you are replacing the gasket, you get whatever gasket you can get to go into the pipeline. So it could have been n Garlock, Goodyear, whatever. There was no definite: You use Garlock i this pipeline and Goodyear on that pipeline. They were -- Q: Interchangeable? A: Interchangeable, yes. **** Q: So out of the 10 to 20 times that Mr. Malaney preformed work in contact with gaskets, what percentage involved using a preformed gasket and what percentage involved cutting a new piece? A: I would say 90 percent of the time we had the performed gaskets. Q: And you identified that there were different manufacturers of gaskets that Mr. Malaney would have been in contact with. Of those were there different - strike that. Let me rephrase that. Were there different manufacturers of the preformed gaskets? A: Yes. Q: And who were the different manufacturers of preformed gaskets? -3- .r- [* 5] A: Conselco, Goodyear, and I had forgotten about Garlock gaskets. They were all preformed. Q: And were there different manufacturers of the gaskets that you had to cut? A: Chesterton was the one that I remember. Q: A: So the other three that you mentioned, is it Conselco? Yes. Q: Goodyear and Garlock, those were strictly the preformed gaskets? A: Correct. Plaintiff s contention that Mr. Shively s testimony is somehow contradictory is without merit. Taken in context, nowhere in his deposition does Mr. Shively testify that he worked with or was otherwise exposed to sheet gaskets manufactured by Goodyear, nor can such be reasonably inferred from the record. In fact, as set forth above, Mr. Shively s testimony that the gaskets he associated with Goodyear were preformed is unequivocal. As such, plaintiff has failed to raise an issue of fact sufficient to defeat Goodyear s motion. Accordingly, it is hereby ORDERED that the motions by the Goodyear Tire & Rubber Company and Goodyear Canada, Inc. are granted, and this action and any cross-claims against these defendants are dismissed in their entirety; and it is further ORDERED that ths action shall continue as against the remaining defendants; and it is further ORDERED that the Clerk is directed to enter judgment accordingly. This constitutes the decision and order of the court. DATED: December $, 2011 J.S.C. -4- FI hE E : l

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