Szamatulski v American Art Clay Co., Inc.

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Szamatulski v American Art Clay Co., Inc. 2012 NY Slip Op 31850(U) July 11, 2012 Supreme Court, New York County Docket Number: 190079/11 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. UEDON711612012 [* 1] SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY PRESENT: MON. SHERRY KLEIN HEITLER PART 30 Justlce MOTION DATE - v MOTION 6EQ. NO. ._ MOTION CAL. NO. The following papers, numbered 1 to weid read on thls motion tolfor P9PER6 NUMBERED Notice of Motion/ Order to Show Cause - Affldavlta - Exhlblts ... Answerlng Affldavlts - Exhlblta Replylng Affidavits Cross-Motion: 0 Yes c No ] Upon the foregoing papers, tt la ordered that this rnotlon NEW YORK COUNTl CLERK S OFHCE RON. S[I-ERRW KLEIN H E I T L E ~ ~ ~ ~ . =heck one: 0 NON-FINAL DISPOSITION DO NOT POST 0 REFERENCE r] FINAL DISPOSITION Check if appropriate: r] 0 SUBMIT ORDER/ JUDG. 0 SETTLE ORDER/ JUDG. [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 30 X Index No. 190079/11 Motion Seq. 012 RONALD SZAMATULSKI, P1aintiff, DECISION & ORDER - against - FILED AMERICAN ART CLAY COMPANY, INC., et al. JUL 16 2012 Defendants. X _ _ - _ _ _ _ _ _ _ - _ _ - _ _ - _ - - l _ _ l _ _ _ _ _ _ _ _ _ _ l _ _ _ _ _ - SHERRY EIN HEITLER. J .. - NEW YORK COUNTY CLERKS OFFICE L this asbestos personal injury action, defendant Tishman Liquidating Corporation, Inc. n ( Tishman Liquidating ) moves pursuant to CPLR 3212 for summaryjudgment dismissing the - complaint and all cross-claims asserted against it. For the reasons set forth below, the motion is granted. This action was commenced on or about March 2,201 1 by Ronald Szamatulski ( Plaintiff ) to recover for personal injuries caused by his exposure to asbestos. On April 12, 201 1, Plaintiff served answers to interrogatories on all counsel, wherein Plaintiff identified Tishman as the General Contractor for the construction of an apartment building at 190 East 72nd Street, New York, NY ( Tower East ), where he worked as a pipefitter and plumber for approximately 18 months from 1961 through 1962. I According to the defendant, Tishman Liquidating w s established in 1978 for the a purpose of liquidating some of the assets of Tishman Realty & Construction Co., Inc. ( Tishman Realty ) for certain insurance policies. -1- [* 3] Mr. Szarnatulski worked as a pipe fitter for H. Sands Company at the Tower East worksite. (Defendant s exhibit B, p. 553). He testified that lie was exposed to asbestos primarily from the work of pipe coverers who used asbestos in his presence while cutting pipe insulation in the Tower East boiler room, (Deposition, p. 235). The defendant filed this motion for summary judgment on the grounds that Mr. Szamatulski has failed to come forward with any proof that he was exposed to asbestos-containingproducts manufactured, rebranded, sold, shipped, installed, or distributed by Tishman Liquidating or Tishman Realty, or that either Tishman entity was even present at Tower East during the time Plaintiff worked there. The defendant also argues that, even if it was present at the construction of Tower East, Plaintiff has presented no evidence that Tishman Liquidating directed, supervised or controlled any of Mr. Szamatulski s work. Plaintiff suggests that Tishman Realty was not just present at tlie worksite, but was awarded the exclusive construction contract for the Tower East apartment building. Thus Plaintiff arbwes there are issues of fact regarding tlie defendant s supervision and control over Mr. Szamatulski s work sufficient to withstand summary judgment. ,DDI[SCUSSION A party moving for summary judgment must demonstrate the absence of any material issue of fact. See Zuckerma~. City ofNew Yorli, 49 NY2d 557,562 (1980); CPLR 3212(b). v One opposing a motion for summary judgment must produce evidentiary proof in admissible 2 Mr. Szamatulski was deposed over the course of nine (9) days: June 28-30,2011, and August 2, 10, 1 1, 12, and 15. A Copy of the transcript was submitted as defendant s exhibit B ( Deposition ). -2- [* 4] I form sufficient to require a trial of material questions of fact on which he rests his claim or must demonstrate acceptable excuse for his failure to meet the requirement of tender in admissible form. . , Id. In asbestos-related litigation, if a defendant has made aprimafacie showing of entitlement to summaryjudgment, [tlhe plaintiff is not required to show the precise causes of his damages, but only to show facts and conditions from which defendant s liability may be reasonably inferred. Reid v Georgia Pacific Corp., 2 12 AD2d 462,463 (1st Dept 1995). Tishman Liquidating has demonstrated from Mr. Szamatulski s deposition testimony that he did not identify it as Tower East s general contractor. (Deposition, pp. 233-34): Q: And do you know who employed those pipe coverers i n New York City? A: That 1-- I can t recall who they were. I don t know if I could recall, but I have to give that some thought because 1don t know right now because I didn t expect to know who they were. I mean, we re talking New York City in the place that we - we didn t know what was going on. We, we were employed by the Local 638 and went on the job, and we did it, but I do know that we worked for H. Sands Company. I do know that Turner was the main contractor, and let me see, Tislman or - there was another name over there. I m trylng to think, and I think they, they did the plumbing on it. Schlosberg or something like that or some name anyway. I don t know if Schlosberg is the right name or not, but they, they did the plumbing on it. As his deposition continued, there is no further mention of Tishman. Mr. Szamatulski did however more positively testify to his belief that Turner was the Tower East general contractor. (Deposition, pp. 555-58): Q: Okay. Why do you believe that Turner was the general contractor at the job, sir? A: Well, because of the fact that they had Turner on their building that they went into, and they had meetings there and all. My bosses and all, they had meetings about the job and everything like that. And Turner, they went in the Turner building. And Turner was the main contractor more or less directing the work to continue. -3- [* 5] Q: And when you say the Turner building, is that a shack on the site? A: Yeah. **** Q: Do you recall if there was anything written on that shack? A: Yeah. Turner. **** Q: Was your supervisor at that site someone from Sands Company? A Yes. Q: And did you take your direction fiom that person from Sands Company? MR. STRAUSS: Objection to form. THE WITNESS: Yes. * * e * Q: Did anyone other than someone from Sands Company tell you how to do your work at that site? MR. STRAUSS: Objection to form. THE WITNESS: Well, you had Turner people around coming around watching and making sure it was being done right, especially with the hangers and to make sure they re in the right place for holding the pipe. And I m pretty sure we had other people over there, and they were from Turner. This testimony is enough to satisfy Tishman s prima facie burden. Plaintiff submits a memorandum of law which suggests that as a matter of law Tishman Liquidating is strictly liable for Mr. Szamatulski s injuries pursuant to section 200 of the Labor Law, which is a codification of the common-law duty imposed upon owners or general contractors to provide construction site workers with a safe place to work. Nevins v Essex Owners C o p , 276 AD2d 3 15 (1st Dept 2000). But where, as here, a claim arises out of alleged defects or dangers arising from a contractor s methods or materials, recovery against the general contractor anno not be had unless it is shown that the party to be charged exercised some supemisory coiitrol over the operation. Ross v Curtis-Palmer Hydro-Elec.Co.,8 1 NY2d 494,505 (1 993). In this regard, [gleneral -4- [* 6] supervisory authority is insufficient to constitute supervisory control; it must be demonsbated that the contractor controlled the manner in which the plaintiff performed his or her work, i.e., how the injury-producing work was performed. Hughes v Tishman Consfr.COT., 40 AD3d 305,306 (1st Dept 2007); see aLso Matthews vA.C. & S . , Index No. 118368/01 (Sup. Ct. NY Cty, Dec. 6,2002, Freedman, J., at 1) (the mere preseiice of a representative of a general contractor who has no supervisory role or control over the plaintiff does not render the contractor liable where there is no evidence to show that the defendant contractor was present at the exact time plaintiff was present ). In this respect, in addition to its memorandum of law, Plaintiff submits an affidavit which Mr. Szamatulski issued after his deposition, neither of which are sufficient to rebut the defendant sprimafacie case. Mr. Szamatulslu s affidavit merely serves to confirm that he worked at Tower East. It does not mention whether or not Tishman was present at the Tower East construction site or whether he took any directions from Tishman on that job. Moreover, Plaintiffs answering papers do not evidence any supervision and control sufficient to render Tishman Liquidating liable for Mr. Szamatulski s injuries. ROSS, supra, 81 NY2d at 505; Hughes, supra, 40 AD3d at 306. Plaintiff merely speculates that if Tishman Realty was a general contractor at Tower East, Tishman Liquidating is legally responsible for Mr. Szamatulski s alleged asbestos exposures from his work at that construction site. Accordingly, it is hereby ORDERED that Tishman Liquidating Corporation, hc. s motion for summary judgment is granted, and that this action and any cross-claims related to this defendant are severed and dismissed in their entirety, and it is further -5- [* 7] ORDERED that this case shall continue against the remaining defendants, and it is further ORDERED that the Clerk shall enter judgment accordingly. This constitutes the decision and order of the court. ENTER: DATED: 7 11. /z J.S.C. FILED JUL 16 2012 NEW YORK COUNW CLERK'S OFFICE -6-

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