Miceli v Anchor Packing Co.

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Miceli v Anchor Packing Co. 2012 NY Slip Op 30618(U) March 13, 2012 Sup Ct, NY County Docket Number: 190234/09 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] SCANNED ON 311312012 INDEX NO. -V - MOTION DATE MOTION SEQ. NO. The followlng papers, numbered Ito , were read on this motion to/for Notice of MotlonlOrder to Show Cause -Affidavits IW S ) . IW 3 ) . IN o w - Exhibits Answering AiXdavlts - Exhibits Replying Affldavlts Upon the foregoing papers, It Is ordered that this motion is is decided in accordmcc with the memorandum decision dated :< v 1 -> L I. CHECK ONE: ..................................................................... 0 NON-FINAL DISPOSITION CASE DISPOSED 0DENIED ........................... MOTION IS: nGRANTED 3 SETTLE ORDER CHECK IF APPROPRIATE: ................................................ 2. CHECK AS APPROPRIATE: 3. DO NOT POST [.I GRANTED IN PART u OTHER 0SUBMIT ORDER FIDUCIARY APPOINTMENT nREFERENCE [* 2] SUPREME COURT OF I HESTATE OF NEW YORK COUNTY OF NEW YORK: PART 30 -__________---____X PHILIP J. MICELI and ROSE MARIE MICEIJ, Index No. 190234/00 Motion Seq. 002 DECISION ANI) ORDER Plaintiff, -against- ANCHOR PACKING COMPANY, et al., IefciidanIs. ) - _ _ _ _ _ _ _ _ _ - - - - - - - _ _ _ _ _ _ _ _ _ _ _ l _ _ _ _ X _ _ _ _ r _ SIIERRY KLEIN IIEITLER, J.: In this asbestos pcrsonal injury action, defendant Gcorgia-Pacific, LLC ("GeorgiaPaciiic ) renews its iiiotioii pursuant to CPLR 3212 for suiiuiiary judgmcnt dismissing the complaint and all other claims and cross-claims asserted against it. For the reasons set forth below, thc motion is granted. BACKGROUND This action was commeiiccd by plaintiffs Philip M i d i , now deceased, arid his wifc Rose Marie Miceli, to recover for personal injuries causcd by Mr. Miceli s alleged cxposure to asbestos-containing products while, among other things, performing renovations at his 74 Sycamore Street, Massapequa, New York, residcnce . Relevant to this motion is plaintiffs claim2 that Mr. Miccli was exposed to asbestos from Georgia-Pacific joint compound whilc installing sheetrock in the living room, dining room, kitchcn, and bcdroom at this addrcss after he I Mr. Miceli resided thcre until his death on Novcnibcr 29,2010. 2 Mr. Miceli was dcposed on Novembcr 12, 2009. A copy o f h i s deposition transcript is subnii tted as defend ant s exhibit B, -1 - [* 3] iiioved there in 1909. On March 4, 2010, the parties conductcd a site inspection at thc M i d i lionic duiing which an ciiginccr extracted IiLiiiierous joint compound samples fiom h c walls on which plaintiffs claiiii Mr. Miceli uscd Gcorgia-l acific brand joint cornpound. Dr. Drew It. Vrtn Ordcn, an cnginccr and sciciitist eiiiployed by R.J. I ,cc Group, Inc of Monroeville, Peimsylvania, later tcstcd thcsc samples aid concluded that they did not contain asbestos fibers. Georgia-Pacific movcd for sii~iimary judgment on tlic ground that thc joint compound Mr. Miceli used to renovate his hoiiie did not contain asbestos and therefore could not have causcd his injuries. On October 14, 201 1, this court denied Gcorgia-Pacific s inotion without prcjudicc to renew because its cxpcrt s report was uiiswoiii and therefore yrimtr.fncie insufficient to serve as the basis for its motion. Defcndaiit now renews its motion for summary judgrnent on the same gounds, and in accordancc with this court s Octobcr 14,201 I order submits a sworn affidavit to accompany its expert s report. Plaintiffs argue, as tlicy did in their original motion, that the reliability of Gcorgia-Pacific s expert s findings are yuestionrtblc givcn tlic mctliod uscd to collcct the samples. DISCJJSSION To obtain summaiy judgment, thc dcfcndant must establish its cause of action or defense sufficiently to warrant a court s dirccting judpnent in its favor as a matter of law, and must tender sufficient cvidcnce to demonstratc the absence of any material issue off&. See Zuclicrmarz v City qf NL MJ York, 49 NY2d 557, 562 (1980) CI LR ij 3212(b). In asbestos-relatcd litigation, oncc the niovant has made a pinza,f&ic showing of its ciititlemcnt to summary [* 4] judgment, the plaintiff must then demonstratc that there was exposurc t o asbestos fibers released from the defendant s product. C uwciii v Flirztlcotc Ch., AD2d 1 OS, 106 (1st Dept 1994). In 203 this respcct, tlic plaintin s burdcii is to show facts and conditions fioiii which defendant s liability iiiay be reasonably inferTed. Kcid v &or-gia Pw(fic C rirp.,2I2 AD2d 462, 463 (1st Dept 1995). Mcrc boileiylate or conclusory allegations will not sufiice. Gcorgia-Pacilk purports that the joint coml~ouiid used to renovate Mr. Miccli s lmiie in 1969 did not contain asbestos, and in support d i e s oil the results of a CPLR 3 120 inspection the parties conducted of the Miceli rcsideiice on March 4,2010. Present at the iiispcction were Ilie dcccdciit Philip Miccli, Jason Kaufman, Esq. (counsel for Georgia-Pacific), Anthony Cappcllo (an investigator hired by plaintiffs counsel), David Sundell (an engineer who collectcd the wall samples), and Cliarles C occhiola (a general contractor who assisted Mr. Sundcll and who repaircd the walls after the saiiiples were taken). The samplcs wcrc tcstcd by Dr. Van Orden to dctcrmine their chemical composition, and in particular, to dctcniiine their asbestos contcnt. His report, submitted herein as defendant s exhibit E, providcs that scvcii wall saniples were analyzed using polariLed light microscopy, traiisiiiission electron mici-oscopy, aiid x-ray powder diffraction. Based 011 thesc tcsts, Mr. Van Orden concludcd that the saiiiples did not contain any asbestos libers. Significantly, plaintiffs did not collect their own samples during the iiispcction or conduct any indcpciident tests. In addition thcy did not submit a rebuttal expert report as noted by the court in its October 14, 201 1 order. Instead, plaintiffs merely contend that thc niethods used to collcct thc samples are tlawed and, accordingly, that Dr. Van Orden s conclusions are unreliable. 3 Mr. Van Orden attcsted to the vcracity ofhis rcport on October 13, 201 1 -3- [* 5] H O W ~ Vneither thc dcposition lestiiiioiiy 110r the scientific studies submitted by plaintifTin C~, oppositioii to this motion are sufficicnt to call Dr. Van Orden s conclusions into qircstioii. As such, plaintiffs have not mct thcir burden of proof, scc C rrwciit v Flirltliotp C u., 203 AD2d 105, 106 (1 sl Dept 1994), and summary judgment is appropriatc. Accordingly, it is hereby ORDERED that Georgia-Pacific, LLC s motion for summary judgiiciit is gantcd, and that this action and any cross-claims related to this dcfcndant arc scvcl-cd and dismissed; and it is furthcr ORDERED that thc rcmaiiider of the action shall continue as against the remaining defendants; aiid it is further ORDERED that tlic Clcrk is directed to eritcr j u d p c n t accordingly. This constitutes the decision and order of the Court. 1 SHERRY K ETN IIEITLER .J.S.C. -4-

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