Deer v Air & Liquid Sys. Corp.

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Deer v Air & Liquid Sys. Corp. 2012 NY Slip Op 32210(U) August 21, 2012 Supreme Court, New York County Docket Number: 190261/11 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 812212012 [* 1] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HQN. SHERRY C<!,E!N HEITLER Justlce - - Index Number : 190261/2011 DEER, MAXWELL vs. AIR & LIQUID SYSTEMS SEQUENCE NUMBER : 002 SUMMARY JUDGMENT . MOTION DATE MOTION SEQ. NO. . . . .. . r ... . 1 I. . ' ? . The following papem, numbered Ito , were read on thls motlon toffor Notlce of MotionlOrder to Show Cause - Amdmvlb - ExhlblCs Anrwsrlng Affldav1t.s INoh). INO(@). IW s ) . - Exhlbb Replying Affldavlts Upon the foregoing papers, It I ordered that thls motion Is s NEW YORK COUNTY CLERK'S OFFICE Dated: g /L-. ..................................................................... 0 CASE DISPOSED DENIED CHECK AS APPROPRIATE: ........................... MOTION I : 0GRANTED S CHECK IF APPROPRIATE: ................................................ SETTLE ORDER 1. CHECK ONE: 2. 3. J.S.C. DO NOT POST ~'NON-FINALDISPOSITION 0GRANTED IN PART OTHER SUBMIT ORDER 0FlDUClARY APPOINTMENT REFERENCE [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 30 _ _ _ _ _ _ _ _ _ _ l _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ r _ _ - X Index No. 190261/11 Motion S q . 002 MAXWELL DEER AND CAROLYN DEER, Plaintiffs, DECISION & ORDER -against- AIR & LIQUID SYSTEMS CORPORATION, et al., FILED Defendants. $HEMY HE1TLER, J.: NT In tlis asbestos-related personal injury action, defendant Georgia-Pacific I LLC Nm \/OR/( CLERK S OFFICE ( Georgia-Pacific ) moves for summary judgment pursuant to CPLR 3212(b). For the reasons set forth below, the motion is granted. BACKGROUND Plaintiff Maxwell Deer w s diagnosed with lung cancer in March o f 201 1. In July of 201 1 Mr. a Deer and his wife Carolyn Deer filed this action to recover for personal injuries allegedly caused by Mr. Deer s exposure to asbestos. Mr, Deer was deposed on September 13-14,201 1 and on October 17-18,201 1. Copies of his deposition transcripts are submitted as defendant s exhibit B ( Deposition ). Mr. Deer testified to asbestos exposure fiom a number of different sources. Among other things, Mr. Deer claimed that he was exposed during the renovation of his in-laws home at 103rd Street in East Elmhurst, New York where he and his first wife lived for five years until 1956. Mr. Deer testified to being involved with lots of repairs at that home, including spackling of cracks in the walls . . . lots of painting and varnishes and things like that, but no major repairs. (Deposition pp. 32-33). Mr. Deer further testified that he believed the spackle and gypsum he worked with during those repairs contained asbestos. -1- [* 3] At issue on this motion for summary judgment is Mr. Deer s purported identification of Georgia-Pacific as a manufacturer of one of the products he used during those repairs. I relevant part, n Mr. Deer testified as follows (Deposition pp. 33-34): Q. Okay. The spackle, do you know the brand name or manufacturer of the spackle that you worked with at that location? A. I knew the ,name spackle. Q, Okay. A. It could have been Georgia-Pacific. It could have been Kaiser Gypsum. I don t know. I don t recall, I should say. I do know I worked with that type of stuff. Georgia-Pacific was mentioned only once more during the entire Deposition, when plaintiffs counsel revisited Mr. Deer s testimony about the 1950 shome repairs (Deposition pp. 384-86, objections omitted): Q. Okay, Do you know who manufactured any of the dry compound that you used? A. I don t recall. **** Q. Do you know who manufactured any of the wet compound you used? A. I don t recall. ++** Q. You testified that at your wife s parents house that it could have been Georgia-Pacificor Kaiser Gypsum. Do you recall that testimony? **** A. Yes. Q. Do you believe that you ever used Georgia-Pacific compound? * * I * A. At some time in my career I did. Georgia-Pacific asserts that Mr. Deer s deposition testimony is insufficient to identify a Georgia-Pacificproduct as a cause of his asbestos exposure, In support of this motion, Georgia-Pacific submits an affidavit sworn to on August 23,2010 by Howard Schutte, a 25-year veteran of Georgia-2- [* 4] Pacific and former Vice President, Strategy and New Product Development, Georgia-Pacific Gypsum, LLC. In his affidavit Mr. Schutte states that Georgia-Pacific sGypsum Division neither sold nor manufactured any asbestos-containingproducts until late 1965 when it acquired the Bestwall Gypsum Company, He further avers that Georgia-Pacific started selling dry joint compound without asbestos in 1973 and ceased manufacturing the asbestos-containingjoint compound in May 1977. Plaintiffs claim that summary judgment should be denied because Mr. Deer s testimony that he was exposed to asbestos-containingproducts manufactured by Georgia-Pacificraises a genuine issue of fact and further because Georgia-Pacific admits to having manufactured asbestos-containing products as early as 1965. DISCUSSION To make aprima facie case, a party moving for summary judgment must demonstrate the absence of any material issue of fact. See Zuckeman v Ciy o New York, 49 NY2d 557,562 (1 980), f CPLR 3212(b). In asbestos-related litigation, if a defendant has made a prima facie showing of entitlement to summary judgment, the plaintiff must then demonstrate actual exposure to asbestos fibers released from the defendant s product. Cawein v Flintkote Co., 203 AD2d 105, 106 (1st Dept 1994). Although a plaintiff is not required to show the precise cause of his damages, he is required to show facts and conditions from which a defendant s liability may be reasonably inferred. Reid v Georgia Pacific COT., 212 AD2d 462,463 (1st Dept 1995). The identity of a manufacturer of a defective product may be established through deposition testimony (see Dollas v K R Grace & eo., 225 AD2d 3 19,321 [ 1st Dept 19961) but such evidence cannot be speculative or conjectural. See Burr v Town o Hempstead, 23 AD3d 595,596 (2d Dept f 2005). T h s is especially true here where the defendant manufactured asbestos-containing products for a limited period and the plaintiffs allegations against it are neither corroborated nor connected to such -3- [* 5] time period. In this case, Mr. Deer could only speculate as to whether he ever used the defendant s products, and even then, only testified to any such use during the 1950 s a time when indisputably asbestos-containing Georgia-Pacific brand joint compound did not yet exist, It would thus be impossible in this case for a fact finder to reasonably infer that Mr. Deer was exposed to asbestos from the defendant s product. Reid, supra. Moreover, Mr. Deer s uncorroborated testimony that he did at some point in his career use Georgia-Pacific brand joint compound and that such joint compound contained asbestos is insufficient to raise a triable issue of fact to defeat this motion. See Perdicara v A.O. Smith Water Products, 52 AD3d 300 (1st Dept 2008). Accordingly, it is hereby ORDERED that Georgia-Pacific, LLC s motion for summary judgment is granted, and this action and any cross-claims against Georgia-Pacific are hereby severed and dismissed in their entirety; and it is further ORDERED that this action shall continue against all the remaining defendants herein; and it is further ORDERED that the Clerk is directed to enter judgment accordingly This constitutes the decision and order of the court. FILED ENTER: NEW YORK COUNTY CLERKS OFFICE DATED: $#z I 0 - .- J.S.C. -4-

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