McDonald v A.C.&S., Inc.
2012 NY Slip Op 30967(U)
April 5, 2012
Supreme Court, New York County
Docket Number: 105389/02
Judge: Sherry Klein Heitler
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SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PART
30
INDEX NO.
/b
Justice
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Index Number : 10538W2002
MC DONALD, CHRISTINE A.
vs.
A.C. & S.
SEQUENCE NUMBER : 001
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SUMMARY JUDGMENT
The following papem, numbered I to
Notlce of Motlon/Ordsr to Show Causs
Answering Affldavitm
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MOTION DATE
@&.~>;)
MOTION SEQ. NO.
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,were read on this motion tolfor
-Affldavitr - Exhlblts
I NO(@).
I No(@.
I We).
- Exhiblta
Replylng Affldavits
Upon the foregolng papem, It Is ordered that this motion Is
1s decided in accorciaiice with
t
k
Jmemorandum decision dated y , . &-
FILED
NEW YORK
COUNTY CLERKS OFFICE
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1. CHECK ONE:
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........................... MOTION IS:
CHECK IF APPROPRIATE: ................................................
0DENIED
GRANTED
3.
SETTLE ORDER
0DO NOT POST
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a NON-FINAL DISPOSITION
CASE DISPOSED
2. CHECK AS APPROPRIATE:
+.^
0GRANTED IN PART
0OTHER
aSUBMIT ORDER
0FIDUCIARY APPOINTMENT
0REFERENCE
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK: PART 30
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CHRISTINE A. MCDONALD, Individually and as
Executrix for the Estate of JAMES W. MCDONALD,
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Index No. 105389/02
Motion Seq. 001
DECISION AND ORDER
Plaintiffs,
-againstA.C.&S.,INC. (ARMSTRONG CONTRACTlNG &
SUPPLY), et al.,
FILED
APR 1 2 2012
TLER-J,:
NEW YORK
COUNTY CLERKS OFFICE
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In this asbestos personal injury and wrongful death action, defendant Crane CO.moves
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pursuant to CPLR 3212 for summary judgment dismissing the complaint and all cross-claims
asserted against it on the Qounds that plaintiffs have failed to produce any competent evidence
that plaintiffs' decedent was exposed to asbestos as a result of a product that Crane Co.
manufactured, supplied or distributed. For the reasons set forth below, the motion is denied.
BACKGRQUND
Plaintiffs' decedent died of mesothelioma on October 16,2000. This action was thereafter
commenced by the estate of James W. McDonald to recover for personal injuries and wrongful
death allegedly caused by Mr. McDonald's exposure to asbestos-containing gaskets, insulation,
and dust. Relevant to t h s motion is plaintiffs' claim that boiler plumbers and other workers
removed, repaired, and replaced Crane Co. valves in Mr. McDonald's presence while he worked
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as a sheet metal worker and supervised other sheet metal workers at his family's HVAC business
in Schenectady, NY during the early 1970s. Plaintiffs produced Frederick Thayer ("Mr. Thayer"),
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Mi. McDonaldâs brother-in-law and former co-worker at the HVAC business, for examination
before trial to testify on Mr. McDonaldâs behalf.â Among other things, Mr. Thayer testified that
Mr. McDonald was exposed as a bystander to asbestos-containing gaskets and insulation
associated with Crane Co. valves. Crane Co. alleges that Mr. Thayerâs testimony is speculative
and should be thrown out because Mr. Thayer could not specifically identify at which work sites
Crane Co. valves were located and he could not testify to a particular instance where he observed
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Crane Co. valves being worked on i Mr. McDonaldâs presence. Crane Co. also asserts that Mr.
Thayer could not state whether the gaskets used on the valves where he worked contained
asbestos or whether the Crane Co. valves to which he testified were insulated.
DXSCUSSIOly
Summary judgment is a drastic remedy that must not be granted if there is any doubt
about the existence of a triable issue of fact. See Tronlone v Lac dâAminate du Quebec, Ltee, 297
AD2d 528,528-29 (1st Dept 2002). To obtain summary judgment, the movant must establish its
cause of action or defense sufficiently to warrant a courtâs directing judgment 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 qfNew York, 49 NY2d 557,562 (1980); CPLR 32120).
In asbestos-related litigation, once the movant has made aprimafucie showing of its
entitlement to summary judgment, the plaintiff must then demonstrate that there was exposure to
asbestos fibers released from the defendantâs product. Cawein v Flintkote Co., 203 AD2d 105,
106 (1st Dept 1994). In this coiltext, what the plaintiffs need to show are âfacts and conditions
1
Mr. Thayer was deposed on April 27,201 1, April 28,20 11, and May 12,2011.
Copies of his deposition transcripts are submitted as defendantâs exhibit C.
(âDepositionâ).
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from which the defendantâs liability may be reasonably inferred.ââ Reid v Georgia-PuciJic Corp.,
212 AD2d 462,463 (1st Dept 1995).
Crane Co. argues that Mr. Thayer did not explicitly identi@ or recall particular work sites
where Mr. McDonald could have been exposed to asbestos from Crane Co. products, relying on
the following testimony (Deposition p. 400):
Q:
Let me finish my question. And this morning your testimony has been pretty
consistent that you donât have a specific recollection of seeing a particular product
at a particular site. Does the same hold true for the Crane valves?
A:
Yes.
Q:
So you didnât actually see any Crane valves at the psychiatric center boiler room;
correct?
A:
I canât say that there were or there werenât.
Q:
And itâs fair to say that you canât place Crane valves in any specific job site where
you and Jim were working together; is that correct?
A:
There was a lot of different valves and to put that one on one site, I canât say that.
(Deposition pp. 403, objection omitted):
Q:
So the plumbers are working with thc valves while youâre in the same room?
A:
Sometimes.
Q:
And you donât recall any specific site where that happened; is that correct?
A:
No.
Q:
And you donât recall a specific site where Jim w s working in the same room with
a
plumbers working with valves; is that correct?
A:
Thatâs true, yes.
But the record also indicates that Mr. Thayer worked with Mr. McDonald as a sheet metal
worker in the psychiatric center at the Albany Medical Center for approximately two months in
the 1970s, and that during this time there were boilers, motors, pumps, valves and insulated
plumber pipes at this location (Deposition pp. 184-185).
In this regard Mr. Thayer testified that he and Mr. McDonald worked on the removal and
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installation of new motors in the psychiatric center boiler room, which by disturbing the
insulation on the pipes and other equipment, caused Mr. McDonald to be exposed to asbestos
(Deposition pp. 187-193).
When Mr. Thayer was asked to identify, inter alia, the valves that were located in the
psychiatric center boiler room, Mr. Thayer specifically identified Crane Co. valves (Deposition p.
203-204):
Q:
All right. Do you believe that Jim was exposed to asbestos in any other way
besides the motor work and the hood work?
****
A:
By getting near the pumps, valves, the piping, the boilers.
Q:
A:
And thatâs with regard to the motor work; correct?
Yes.
****
Q:
Can you identify any of the valves that were in the psychiatric center boiler room
by brand, trade or manufactureâs name?
A:
Peerless, Crane. I think thatâs it.
Mr. Thayer testified how he could identify the valves as Crane Co. valves around which
he and Mr. McDonald had worked (Deposition pp. 400-401, objection omitted):
Q:
How did you know they were Crane valves?
A:
The body usually had a label or a stamp on it or a ring.
****
A:
Into the body of the valve was usually the name.
****
Q:
Okay. And just so I understand you correctly, you saw a lot of - - you saw valves
manufactured by many different companies and Crane is just one of the ones that
you recall; is that correct? , . .
A:
Crane was one that I recall - - that I saw.
Q:
But you saw valves manufactured by other companies as well; is that correct?
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A:
Yes.
Mr. Thayerâs testimony suficiently identifies Crane Co. valves in the psychiatric center
boiler room where he and Mr. McDonald worked together. As such, there are issues of fact from
which a reasonable jury may infer that Mr. McDoiiald was indeed exposed as a bystander to
asbestos from Crane Co. valves. See Reid, supra, 212 AD2d at 463.
Nevertheless, Crane Co. argues that the discrepancies in Mr. Thayerâs statements require
the court to dismiss his testimony as mere speculation. In support, Crane Co. points to Mr.
Thayerâs inability to specifically identify times, places, and sites where Mr. McDonald may have
been exposed to Crane Co. valves (Deposition pp. 407-08).
However, an internal conflict within the testimony does not eliminate all genuine issues
of material fact if some of that testimony sufficiently rebuts the evidence presented in support of
summary judgment. See Carroll v A. 0. Smith Water Prods., Index No. 129996/93,2010 NY
Misc. LEXIS 3787, at *7 (Sup. Ct. N Y Cty. August 9,2010). The âassessment of the value of a
witnessesâ testimony constitutes an issue for resolution by the trier of fact, and any apparent
discrepancy between the testimony and the evidence of record goes only to weight and not the
admissibility of the testimony.â Dollas v WIR. Grace & Co., 225 AD2d 3 19,321 (1 st Dept 1996).
Accordingly, it is hereby
ORDERED that Crane Co.âs motion for summary judgment is denied in its entirety.
This constitutes the decision and order of the court.
SHERRY â¬&
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APR 1 2 2012
NEW YORK
COUNTY CLERKâS OFFICE
