Sadowski v A.O. Smith Water Products

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Sadowski v A.O. Smith Water Products 2012 NY Slip Op 31866(U) July 12, 2012 Sup Ct, New York County Docket Number: 190215/11 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. SCANNED ON 711712012 [* 1] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: - Horu. SHERRY KLEIN HElTLER Index Number : 1902151201 1 SADOWSKI, EDWARD INDEX NO. vs. MOTION DATE A.O. SMITH WATER PRODUCTS SEQUENCE NUMBER : 004 - SUMMARY JUDGMENT The following papsm, numbered 1 to Notles of MotlonlOrder to Show Cause Anrwsrlng Affldavlts j MOTION 8EO. (.~~::~:~~;r(: N O W ,were rbad on thlr motlon tolfor -Affldavltn - Exhlblta I No(*). - ExhlbiG INo(d. IN O W Rsptylng Affldavlts Upon the foregolng papem, It Is ordered that thio motion Is FILED Dated: I. (3 J.S.C. HON. SHERRY KLEIN WEITLER ..................................................................... 0 CASE DISPOSED 2. CHECK AS APPROPRIATE: .............. MOTION IS: 0GRANTED DENIED I . CHECK ONE: 3. CHECK IF APPROPRIATE: ................................................ D~ON-FINAL DISPOSITION 0GRANTED IN PART [7 OTHER 0SETTLE ORDER SUBMIT ORDER 0DO NOT POST 0FIDUCIARY APPOINTMENT 0REFERENCE [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 30 Index No. 190215/11 Motion S e q . 004 EDWARD SADOWSKI and ALBERTA SADOWSKI, DECISION & ORDER Plaintiffs, - against - FILED A.O. SMITH WATER PRODUCTS, et al., Defendants. X SHERRY KLELZV HE1TLER J .. * JUL 1 7 2012 NEW YORK COUNfY CLER S OFFICE Defendant Lennox Industries Inc. ( Lennox ) moves pursuant to CPLR 32 - r;, for summary judgment dismissing the complaint and all cross-claims against it. For the reasons set forth below, the motion is denied. Plaintiff Edward Sadowski was diagnosed with mesothelioma in May of 201 1. On or about June 3,201 I , Edward Sadowski and his wife Alberta Sadowski ( plaintiffs ) commenced this action to recover damages for personal injuries allegedly caused by Mr. Sadowski s exposure to asbestos from 1955 to 1983 when he worked as a carpenter in various locations in New York City and Long Island. Mr. Sadowski worked primarily in the commercial construction industry. Plaintiffs contend that Mr, Sadowski was exposed to asbestos while in the presence of workmen who installed and disassembled products manufactured by Lennox, among others. At his deposition , Mr. Sadowski specifically testified that boiler-workers covered Lennox boilers with 1 Mr. Sadowski was deposed over three consecutive days from June 20 to June 22, 201 1. Copies of his deposition transcripts are submitted as defendant s exhibits 6-8. He passed away in September of 201 1 -1- [* 3] asbestos in his presence. He also testified that Lennox boilers were disassembled in his presence. These activities created asbestos dust to which he was exposed as a bystander. Lennox seeks summary judgment on the ground that plaintiffs have not shown that Mr. Sadowski was exposed to an asbestos-containing product manufactured or distributed by Lennox. In particular, Leimox asserts that it did not manufacture boilers before 1992 and therefore Mr. Sadowski could not have been exposed to asbestos from Lemiox-made boilers at any point during his career. In opposition, plaintiffs contend that Mr. Sadowski s testimony concerning the Lennox products from which he claims to have been exposed presents a question of fact that should be determined by a jury. DISCUSSXON 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 d Aminate 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 court s 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 Zuchrman v City ofNew York, 49 NY2d 557,562 (1980); CPLR 3212m). In asbestos-related litigation, once the movant has made a prima facie showing of its entitlement to summary judgment, the plaintiff must then demonstrate that there was exposure to asbestos fibers released from the defendant sproduct. Cawein v Flintkote Co. 203 AD2d 105, 106 (1 st Dept 1994). In this context, the plaintiff need only show facts and conditions from which the defendant sliability may be reasonably inferred. Reid v Georgia-Pacific Carp., 2 12 AD2d 462,463 (1 st Dept 1995). -2- [* 4] Mr. Sadowski s testimony with regard to his alleged exposure from Lennox equipment is as follows (Deposition 91,93): Q: Are there any other ways in which you believe you were exposed to asbestos during your lifetime? A: Yes. When boilers were being installed or taken apart, with all the asbestos that was covering the boilers. **** Q: You talked about boilers being installed or taken apart and you also talked about the block that was on the boilers, do you know who manufactured any of the boilers that you observed on any of your job sites? A: Yeah. Burnham, Weil-McLain. . . **** A: Burnham, Weil-McLain. More boilers? Mr. Roberts: All the ones you recall. A: Peerless, Lennox, Kohler, Cleaver Brooks. That s it. The defendant says that it did not manufacture boilers until 1992, well after the time period as to which Mr. Sadowski claimed exposure. In support defendant submits the affidavit of Lennox s Corporate Service Manager of Residential Heating Products William Drake, sworn to March 26,2012, who served as such until 1989. Mr. Drake says, I do not believe that the heating equipment that Mr. Sadowski identified during his deposition w s manufactured by a Lennox. Defendant s Exhibit 9,y 4. Notably, it appears Mi. Drake was not certain with respect to his conclusions, which, in and of itself raises a triable issue. In any event, and consistent with defendant s argument herein, Mr. Drake also avers that Lennox did not manufacture boilers prior to 1992 and that Lennox never manufactured boilers which contained asbestos. But the Drake affidavit does not speak to the fact that Lennox manufactured a line of furnaces, which in terms of purpose and appearance are very similar to -3- [* 5] boilers. Further, Mr. Sadowski was not questioned with respect to the differences between furnaces and boilers. Indeed, Mr. Sadowski testified that he never worked on boilers or had any training with them. Mr. Sadowski plainly did not have the professional background to describe the equipment that he was exposed to with technical knowledge. (Deposition p. 433): Q: Sir, I know you ve never worked on any boiler during the course of your career. Have you ever received any training with respect to boilers at all during your lifetime? A: No. In light of this testimony that defendant did not explore Mr. Sadowski s understanding of boilers versus furnaces, which for all intents and purposes serve the same function (i.e., to heat a building), Lennox has not shown that it could not have manufactured the heating equipment to which Mr. Sadowski alleges that he was exposed. This decision is consistent with this court s previous decision in Horn v A . F Chesterton, F Index No. 190281/09 (Sup. Ct. N Y . Co. Oct 15,2010). There Lennox argued it was entitled to summary judgment because it did not manufacture HVAC units that matched the description of the types of HVAC units given by the plaintiff at his deposition, Among other reasons the court denied Lennox s motion because the plaintiffs description of the HVAC units at issue was not explored in sufficient detail by the defendant so as to demonstrate that the units could not have been manufactured by Lennox. The facts of this case are similar to Penn v Amchem, 85 AD3d 475 (1 st Dept 201 1), wherein the First Department held that the evidence presented at trial w s sufficientto permit the a jury to rationally conclude that the asbestos-containing dental liners to which the injured plaintiff was exposed were distributed by the defendant, even though the plaintiffs description of the -4- [* 6] dental liners differed from the descriptions given by the defendant s corporate representatives. While Mr. Sadowski claimed to have been exposed to asbestos from Lennox boilers, the fact is that Lennox manufactured similar types of heating equipment, including furnaces. In light of Mr. Sadowski s lack of technical expertise in this area, this case turns on Mr. Sadowski s credibility, which as a matter of law must be determined by a jury. See Dollar v K R , Grace and Co., 225 AD2d 3 19 (1 st Dept 1996). Accordingly, it is hereby ORDERED that Lennox Industries Inc. s motion for summary judgment is denied. This constitutes the decision and order of the court. DATED: 7 /212I SHERRY KLEJMIEITLER J.S.C. FILED NEW YORK COUNTY CLERK S OFFICE -5-

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