Roman v Air & Liquid Sys. Corp.

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Roman v Air & Liquid Sys. Corp. 2012 NY Slip Op 31922(U) July 12, 2012 Supreme Court, New York County Docket Number: 190262/11 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. [* 1] SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY PRESENT: SHERRY KLEIN HEITLER PART 30 Justice ROBERTO ROMAN and TRUDY ROMAN, 19026211 1 INDEX NO. - MOTION DATE Plaintiffs, -v- 002 MOTION SEQ. NO. AIR & LIQUID SYSTEMS CORP., et al., MOTION CAL. NO. Defendants . Tho following papers, numbered I to were read on this motion to/for PAPERS NUMBERED Notice of Motion/ Order to Show Cause - Affidavits - Exhibits _.. Answering Affidavits - Exhibits Replying Affidavits Cross-Motion: 1 I Yes No Upon the foregoing, it is ordered that this motion is decided in accordance with the memorandum decision dated i d - -7 \ / I - 1% r , -.-- I " / Dated: .,t - I' I i SHERRY KLEIN HEITLER Check one: FINAL DISPOSITION Check if appropriate: J.S.C. NON-FINAL DISPOSITION DO NOT POST [* 2] 1 I ;I i n t iJTs, - against - SHERRY KI,EIN HEI I LEK. J.: j , # I , l , , l I In this ashcstos personal iiijiii-y action, dcfcndanl Taco, Tiic., ( Taco ) IIIOVCS pur-sunnt to CPLR 321 2 for summary jiidgnlcnt disrnissing tlic complaint and all cross-claims asscrtcd against it. For tlic reasons set forth below, the iiiotioii is dcnied. BACKC;KO UND I hisaction was coiiiiiiciiccd hy plnin(ill:s Roberto Romiin and 1 1-udyRoiiiaii to rccover for personal iiijurics allegedly causcd by Mr. Roman s cxposure to, among otlicr things, asbcstos-containing pimps, v;ilvcs, and hoilcrs. Mr. I<oman served in tlic United States Navy f~c7117 1 004 until I 009. I n his inteii-optoly responses, Mr. R o ~ n a n provides that he was cxposed to by asl?cstos-containing pumps manuIir.ct~ii-cd dcfciidant Taco while woi-king as a boiler tcchnician and stationary tireman. Mr. Rc:)maii was deposed over the coiii-sc of SCVCII days between August 23, 201 I and Octobel- 19, 301 I , At his dcposition, Mr. Roman recilllcd working with :rnd arou11d TXO pLmips m i d valves ahoard tlic LJSS Lawrcncc Cor apl~roxiiiiatcly two years. (Dcposilioii pp. I S9-GO, 195)- 1 A copy of his deposition transcript is sdmittcd as dcfcndant s exhibit c ("Deposition"). [* 3] [* 4] scrvicc ahoard the LJSS Lawrencc (Dcpositic)ii, 1). 1 O S ) : Q : Do y o u kiiow wlio madc tlic pumps in tlic foiward hoiler rchu i 1t ? i-ouiii thal you **** I histestimoiiy illustrates that there irre issues u C Iirct Ibr Iliejin-y t o dccidc hccausc any credibility for rcmlutioii nt trial . . . . /)ollri.s, testimony hocaiise there is ;in silr/irri at 32 1 (intcrnal citations omitted); SPC issue o C fact to be deterinined hy the jury). For tlic lirst tiinc in its reply papers, Taco u y c s tliat all Taco products scnt to the IJSS [* 5] rcply pnpci-s is to addi-css :irgiimcnls made in oppositioii to tlic position takcii by tlic 1iiov:uit a r i d ~ i o t to pcr-niit tlic iiiovaiit to iiitl-oducc new ai-guments in support of, or ncw grounds for thc niotion . , . In m y cvciit, wcre (his cowt to considcr dcfcndant s I-cply,tlic cvidcnce presented (herein docs not sul ficicntly establish that d l I acoproducts sent to the LJSS I.awrcnce were u h e s l o s - h e . 1he diagrams supplied i n tlic I-eplypqxi-s are selective insofar as Taco has not providcd any woi-k - 7 ordcrs or other work I-ecoIdsthcy may liavc l i d to coiilimi sirch allegation. Morcovcr, the affiant George I ahcr hcgaii working ill Taco aller the rclevant tiiiic period, wliicli raises !lie issue o r his o r any other perso~i s dircct knowlcdgc of the liicts he has attested to. Ilndcr tlicsc circ~nnstances, a jury s1ic:)uld he given tlic opportunity to deter-mine whethcr o r not plaintiff was cxposcd to asbestos from T L ~ C O product s. Accwrd i ngl y , it is licrchy ORDEREJI t l i i ~ tTilco Inc. s motion for suininary jiidgiiient is dcnicd in its cntircty. i liisconstitutcs thc dccisioii and order of tIic court.,/ 4 . / ,

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