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

Annotate this Case

Download PDF

Kraljic v A.C. & S., Inc. 2012 NY Slip Op 30736(U) March 16, 2012 Supreme Court, New York County Docket Number: 123078/01 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. SCANNED ON 312612012 [* 1] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY - Justice Index Number : 123078/2001 CHIERCHIA, JERRY vs. A.C. & S . SEQUENCE NUMBER : 001 MOTION DATE MOTION 9EQ. NO. SUMMARY JUDGMENT The following papers, numbered I to Notice of MotlonlOrder to Show Cause Answering Affidavits 00 , were read on thls motlon tolfor -Affldavlts - Exhlblta - Exhibits Repiylng Affldavltu IW s ) . IW s ) . IW s ) . Upon the foregolng paperp, It Is ordered that thls motlon is is decided in accordance with the P-meinorandurn decision dated 346 I.CHECK ONE: ..................................................................... ........................... MOTION IS: CHECK IF APPROPRIATE: ................................................ 2. CHECK AS APPROPRIATE: 3. 0 CASE DISPOSED 0 NON-FINAL DISPOSITION 0GRANTED 0DENIED GRANTED IN PART 0OTHER 0SETTLE ORDER 0SUBMIT ORDER 0DO NOT POST 0FIDUCIARY APPOINTMENT 0REFERENCE [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 30 _ _ _ _ _ _ _ - - - - - - - - - - _ _ _ _ _ l _ _ l _ _ _ _ _ _ _ _ _ _ X _ _ _ GERTRUDE KRALJIC, as Executrix for the Estate of JERRY CHIERCHIA, and JOAN CHTERCHLA, Individually, _ - - Index No. 123078/01 Motion Seq. 001 Plaintiffs, DECISION AND ORDER -against- FILED A.C. & S., Inc., et al., MAR 26 2M2 Defendants. _ _ I _ _ _ _ _ _ _ _ _ _ _ - - - - - - _ _ KLEIN HEITLER, J.: _ _ _ X _ _ _ 1 1 1 1 _ _ _ _ _ _ _ _ - - NEW YORK COUNTY CLERK S OFFICE Defendant Crane Co. moves pursuant to CPLR 321 1(a)(4) and (8) to dismiss the within action bearing Index No. 123078/01 (the Within Action ) as duplicative of a prior multi-plaintiff action bearing Index No. 111230/01 (the Prior Action ) pending against it in this court. Crane Co. also moves pursuant to CPLR 32 12 for summary judgment on the ground that it is not liable for products that it did not manufacture, supply or specify for use with its products. Plaintiffs position is that defendant Crane Co. knew or should have known that asbestos-containing components would be integrated with its products for their intended use and had a duty to warn against same. Crane Co. s motion to dismiss is denied. In Cantento v A. C. &., et al., Index No. 121539/01 (Sup. Ct. NY Cty. 2012), this court considered Crane Co. s virtually identical motion to dismiss that plaintiff s complaint as duplicative of an older rnulti-plaintiff action. Among other things, the court held that dismissal was unwarranted because the plaintiff had been severed fiom the multi-plaintiff action pursuant to court direction. Here too, it appears that while the Prior Action is still active in this court, it bears no relation to the Within Action, which was severed -1- [* 3] therefrom in 2001 and maintained separately by plaintiffs ever since. Crane Co, also argues that plaintiffs were required to coimnence a separate action to recover for those injuries which arose from Ivlr. Chierchia s lung cancer. In this regard, the record shows that Mr. Clierchia was initially diagnosed with asbestosis on October 14, 2000. He then commenced the Prior Action on June 5,2001, along with several other plaintiffs, to recover for such injuries. Later that year, he comienced the Within Action in order to pursue lis claims on an individual basis. On January 3,2006, Mr. Chierchia was diagnosed with lung cancer and unfortunately passed away soon thereafter. On February 27,2007, his estate amended the complaint to allege new causes of action for personal injuries and for wrongful death. The amended complaint expressly provides that Mr. Chierchia was diagnosed with lung cancer before he died.2 While asbestosis and lung cancer arc: distinct injuries, see Fusaro v Porter Hayden Co., 145 Misc 2d 91 1, (Sup. Ct. NY Cty. 1989), qrddfor reasons stated 170 AD2d 239 (1st Dept 1991), plaintiffs are not required to commence separate actions to recover for these separate, albeit related harms. See September 20, 1996 Case Management Order, as amended May 26,201 1, section VI(E). What is important is that plaintiffs amended the original complaint, which had alleged personal injuries arising from asbestosis, within three years of the manifestation of Mr. Chierchia s lung cancer, and within two years of his passing. See CPLR 2 14-c; EPTL 5 5-4.1. Therefore, plaintiffs claims with respect to Mr. Chierchia s lung cancer are timely and proper. Regarding its application for summaryjudgment, Crane Co. argues that it is not liable for 1 In the interests of judicial clarity, however, the formal severance of plaintiffs from the prior action bearing Index No.l11230/01 in favor of plaintiffs individual action bearing Index No. 123078/01 is hereby effectuated. 2 Attached thereto are several laboratory reports which confirm said diagnosis. -2- [* 4] products that it did not manufacture, supply or spccify for use with its products. Plaintiffs position is that defendant Crane Co. knew or should have known that asbestos-containing components would be integrated with its products for their intended use and had a duty to warn against same. Plaintiffs produced decedent Jerry Chierchia s former co-worker, Mr. Arthur Klansky, to provide testimony concerning the decedent s work history and alleged exposure. Mr. Klansky testified that he and the decedent worked together as pipefitters at a variety of commercial sites throughout New York City from 1966 through the early 1970s. With respect to the defendant, Mr. Klansky testified that the decedent was exposed to asbestos when he installed gaskets and packing on Crane Co. valves, and when he removed asbestos-containing insulation from such valves, This court addressed near-identical issues in Sawyer v A . C.&S., Inc., Index No. 111152/99 (Sup. Ct. NY Co. June 24,201 1) and Defazio v A. W. Chesterton, Index No. 1279W02 (Sup. Ct. NY Co. August 12,201l), holding in both cases that Crane Co. had a duty to warn consumers against the hazards associated with asbestos because the evidence demonstrated that Crane Co. recommended the use of asbestos-containing insulation and packing in conjunction with its products. As in those cases, the submissions on this motion show that Crane Co. designed and supplied its products with asbestos-containing gaskets, packing, insulation, and cement. Crane Co. s assertions that its valves did not require asbestos-containing insulation or packing to operate properly and that it did not specify the use of same on its products are therefore insufficient to shield it from suit. Accordingly, for the same reasons stated in S a y e r , supra, and Defazio, supra, this court finds that Crane Co. had a duty to warn Mr. Chierchia of the hazards associated with asbestos. See Liriano v Hobart Carp., 92 NY2d 232,237 (1998); Berkowitz v A.C. & S., Inc., 288 AD2d 148 (1st Dept 2001). -3- [* 5] Accordingly, it is hereby ORDERED that Crane Cos smotion for summa? judgment i denied in its entirety, and it is further ORDERED that Crane Co. s motion to dismiss this action is denied in its entirety; and it is further ORDERED that plaintiff Jerry Chierchia is severed from the prior multi-plaintiff action bearing Index No. 11 1230/01 and all of Mr. Chierchia s asbestos-related claims therein are permitted to be individually pursued, as they have been, by his estate, under Index No. 123078/01, and it is furthcr ORDERED that the Clerk of the Court is directed to transfer any documents related to plaintiff Jerry Chierchia that are currently located in the file bearing Index No. 1 11230/01 into the file bearing Index No. 123078/01, and it is further ORDERED that the multi-plaintiff action bearing Index No. 1 11230/01 shall continue as to all remaining plaintiffs therein. This constitutes the decision and order of the court. DATED: 3-/6, I)-.-J.S.C. NEW YORK COUNTY CLERK S OFFICE -4-

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.