Johnson v A.O. Smith Water Prods. Co.

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Johnson v A.O. Smith Water Prods. Co. 2012 NY Slip Op 32006(U) July 23, 2012 Sup Ct, NY County Docket Number: 105917/04 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. - ANNED ON 713112012 [* 1] - SUPREME COURT OF THE STATE OF NEW YORK - v - &9 - COUNTY MOTION DATE MOTION SEQ. NO. smT& h / b w < KCJL/irg (u2 MOTION CAL. NO. 47 4 L . The following papers, numbered 1 to - NEW YORK were read on this motion toifor NUMBERm Notice of Motion/ Order to Show Cause Answering Affidavits - Affldavits - Exhibits ... - Exhibits Replying Affldavit8 Cross-Motion: [7 Yes [7 No Upon the foregoing papers, it Is ordered that this motion FILED NEW YORK Dated: UNrV CLERK'S OFFICE -3-23-LL 4 HaN.SHERRY KLEIN HEITLERJ.S. C. a NON-FINAL DISPOSITION Check one: 0 FINAL DISPOSITION Check if appropriate: 0 DO NOT POST a SUBMIT ORDER/ JUDG. [7 REFERENCE 0 SETTLE ORDER/ JUDG. [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 30 X _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ l _ l _ _ r _ _ _ _ _ _ _ _ _ _ _ _ - Index No. 105917/04 Motion S e q . 004 JOAN JOHNSON, Individually and as Executrix for the Estate of CHARLES F. JOHNSON, DECISION & ORDER Plaintiff(s), - against - FILED A.O. SMITH WATER PRODUCTS CO., et al., Defendants. X _____ rr-__---_________l__ll____________- RY rclLEIN HEITLER. J.: JUL 3 0 2012 N E W YORK COUNTY CLERKS OFFICE In this asbestos personal injury action, defendant Dana Companies, LLC ( Dana ) moves pursuant to CPLR 3212 for summary judgment dismissing the complaint and all cross-claims asserted against it. For the reasons set forth below, the motion is denied. BACKGROUND On April 15,2004, plaintiffs decedent Charles F. Johnson and his wife Joan Johnson commenced this action to recover damages for personal injuries allegedly caused by Mr. Johnson s exposure to asbestos-containing products. Mr. Johnson was deposed on June 1,2011 and July 13,2011. He testified that he worked as a truck mechanic for various companies and at various sites in New York City and Long Island from the late 1960 suntil 2002. One of his primary duties was to remove old engine gaskets and replace them with new gaskets. Plaintiff alleges that this process caused asbestos-containing dust to be released into his vicinity to which Mr. Johnson was exposed. 1 Copies of Mr. Johnson s deposition transcripts are submitted a defendant s s exhibits 3 and 4 ( Deposition ). -1- [* 3] Relevant to this motion is the process by which Mr, Johnson installed new head gaskets and exhaust manifold gaskets, including Victor-brand gaskets.2 Dana filed the instant motion for summaryjudgment on the ground that Mr. Johnson did not testify that he was exposed to asbestos from this process. In this regard, Dana relies on Mr. Johnson s testimony that he handled gasket materials very carefully. In opposition, plaintiff contends that summary judgment should be denied because Mr. Johnson sufficiently identified Victor gaskets as a source of his asbestos exposure. DISCUSSION 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 judgement in its favor as a matter of law, and must tender sufficient evidence to demonstrate the absence of any material issues of fact. Zuckerman v City ofNew York, 49 NY2d 557,562 (1980); CPLR 3212(b). The failure to make such aprimafucie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers. Ayotte v Gewasio, 8 1 NY2d 1062, 1063 (1 993). Mr. Johnson could not identify the brand(s) of gaskets that he removed from old vehicles. He testified that [The gasket] usually falls apart when you take the unit apart . . . . (Deposition p. 250). It is undisputed, however, that Mr. Johnson testified to having replaced these used gaskets with new Victor-brand gaskets throughout his career (Deposition pp. 178, 251-252,254): 2 It is undisputed that Victor gaskets were manufactured, sold, and distributed by Dana during the time period at issue. -2- [* 4] Q. Do you associate with gasket materials that you might have worked with any nanies of manufacturers? A. You got Victor, 3M s another one. Now, which one I worked on, I have no idea, or what truck or what company. I m sure there s more out there on it. **** Q. Did you ever work with any gaskets that you personally took directly out of its original packaging? A. Yeah, I had to open the box up .... Q. A. Can you describe for me what any of these original boxes looked like? Cardboard, thin cardboard. Long. Flat. You take a Victor box, it would be, if my memory is correct, that would be for the gaskets for both up against the head or the block. For your exhaust intake, that would be a longer one. That s a six cylinder. It s a shorter one if it s an eight cylinder. And then you got gaskets that come in intake manifold gaskets. That s usually a pan or something like that. So that would be a bigger box where it came in. Head gaskets, the same thing. They come in the package, and it would be a little bit wider than what the unit is. **** Q. A. Can you tell me any specific vehicle you recall using a Victor gasket on.... A small vehicle like a pick up or car, Ford, Chevy. Chevys, I don t know much about it. It s a small unit, not these big ones. He later described the process by which he typically installed new gaskets in great detail (Deposition pp. 258-261): Q. Now, you mentioned that, you used the words lay down for the gasket, you mean you just placed it on? A. This is the block, okay? Here s the gasket. Everything is set in place hole for hole and everything else. Here s your head. You drop it down nice and easy to level it off, You don t do one of these with the head. It has to be precise. Anything short of that, you re going to lose it. **** Q. By precise, I take it you had to be very careful how you handle the gaskets; am I correct? A. Mm-hmm. Q. You didn t want to bend or damage them in any way? -3- [* 5] Q. No .... You never cut it, correct .... A. No. No. No. You d defeat the purpose. A. **** Q. A. Q. A. And you never drilled any holes in the exhaust manifold gaskets, correct? Put extra holes in them, no. And you never drilled any holes into any of the head gaskets, correct? That s a no, no. If you got to cut them and drill holes, you got the wrong parts. Simple as that. Dana argues that such evidence is insufficient to show that Mr. Johnson was exposed to asbestos from Victor-brand gaskets. In this respect, Dana relies on Mr. Johnson s testimony that he performed his work mindfully and precisely. However, it is error to infer that such testimony necessarily referred to a fear of asbestos, or that his work did not cause asbestos dust to be released into his vicinity. The obvious tenor of the testimony is,that Mi. Johnson strove to achieve the best results by doing his work properly. As Mr. Johnson himself stated, You have to take pride in what you do. (Deposition p. 260). Ultimately determinative of this motion, however, is that during his deposition it was not elicited from Mr. Johnson whether his work on Victor gaskets caused him to be exposed to fiable asbestos fibers. Nor has the defendant submitted evidence that its product could not have been the cause of the injury. These omissions give rise to a material issue of fact that must be presented to ajury. See, e.g., Romanowski v Yahr, 5 AD3d 985 (4th Dept 2004); Feldman v Dombrowshy, 288 AD2d 605 (3rd Dept 2001); see also Movan v A.O. Smith Water Products, et al., Index No. 190433/09 (Sup. Ct. N Y Co. Mar. 17,201 1). Thus, the defendant has notprima facie established its entitlement to summary judgment as a matter of law, In h s regard, the court need not address or even consider the sufficiency of plaintiffs opposition. Ayotte, supra, at 1063, -4- [* 6] see also Winegrud v New York Univ. Med. Ctr., 64 NY2d 85 1,853 (1985). Accordingly, it is hereby ORDERED that Dana Companies, LLC's motion for summary judgment is denied in its entirety. FILED This constitutes the decision and order of the court. JUL 3 0 2012 J.S.C. -5-

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