Byrnes v A.C.&S. Inc.

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Byrnes v A.C.&S. Inc. 2012 NY Slip Op 32451(U) September 18, 2012 Supreme Court, New York County Docket Number: 119504/02 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] 1912412012 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: - HON. SHERRY KLEIN HEITLER PART ?' ,c Justice - Index Number : 119504/2002 BYRNES, JOHN T. vs . A.C. & s. SEQUENCE NUMBER : 001 MOTION DATE MOTION SEP. NO. SUMMARY JUDGMENT ' c ~ Tho following papsm, numbered 1 to Notlce of MotlonlOrder to Show Ciuse Answering Affldavltr ,were read on thls rnotlon to/for -Affldavltr - Exhlblta - Exhlblts Replylng Affldavltr Upon the foregoing papers, It Is ordered that this motion is I Noh). IW B ) . I No(s). && c J.S.C. NON-FINAL DISPOSITION ..................................................................... 0 CASE DISPOSED CHECK AS APPROPRIATE: ........................... MOTION IS: GRANTED 0DENIED [3 GRANTED IN PART 0OTHER 0SUBMIT ORDER SETTLE ORDER CHECK IF APPROPRIATE: ................................................ DO NOT POST 0FIDUCIARY APPOINTMENT 0REFERENCE 1. CHECK ONE: 2. 3. [* 2] SUPREME COURT OF THE STATE OF NEW Y O N COUNTY OF NEW Y O N : PART 30 ----------------_ ___l_______l_l________- JOHN T. BYRNES, as Executor for the Estate of JOHN P. BYRNES, X Index No. 190429/11 Motion Seq. 001 Plaintiff, DECISION $r ORDER - against A.C.&S. INC., et al. SEP 24 2OQ F t In this asbestos personal injury action, defendant Kamak Corporation ( Kmak ) moves pursuant to CPLR 3212 for summaryjudgment dismissing the complaint and all cross-claims asserted against it on the ground that plaintiff cannot show that he was exposed to asbestos by any product manufactured or sold by Rarnak. A party moving for summaryjudgment must demonstrate the absence of any material issue of fact. Zuchrman v City o New Yo&, 49 NY2d 557,562 (1980); CPLR 3212(b). On a motion for f summary judgment, the moving defendant must make aprima facie showing of entitlement to judgment as a matter of law. Ayotte v Gervasio, 8 1 NY2d 1062, 1063 (1 993). In asbestos-related litigation the plaintiff must then show facts and conditions fiom whch the defendant s liability may be reasonably inferred. Reid v Georgia Pacfzc Corp., 2 12 AD2d 462,463 (1st Dept 1995). Plaintiffs decedent John P. Bymes was diagnosed with pleural disease and lung cancer in 2001. Thereafter he commenced this action to recover for personal injuries caused by his alleged exposure to asbestos-containingproducts. The decedent passed away before he could be deposed. However, on February 9,2012, his son and co-worker, John T. Bymes, was deposed in connection [* 3] with this matter. A copy of his deposition transcript is submitted as defendant s exhibit E. The defendant asserts that its roofing paper which Mr. Bymes testified to being used by his father did not contain asbestos. The defendant does not dispute that Karnak was the main supplier of roofing cement that Mr. Bymes and his father worked with as journeymen roofers on large commercial roofing projects in New York in 1978 and 1979, nor that such roofing cement contained asbestos. Yet Karnak submits that the plaintiff has failed to prove that the decedent inhaled asbestos fibers from its product and that any allegation that he was exposed to asbestos fiom a Karnak product is speculative. In support, K m a k relies on Mr. Byrnes testimony that the K r a roofing ank cement that he and his father used was viscous when applied and did not create any dust. However, Mr. Byrnes also testified that his father was exposed to asbestos dust from removing dried, friable, K r a roofing cement from his skin and clothing. h this regard, his ank relevant testimony was (Deposition pp. 136-144): Q . . . Just speaking strictly about the cement, how do you believe your father was exposed to asbestos fiom the cement itself? A The application of mastics and cement is a very messy process. You would literally have it all over you by the time you were done . So you would go home in the evening after work and you would have cements on your clothing, your hands. The products would -- they re very, very messy. (Id. at 136-37). **** Q Okay. So to remove the film from your clothing, would that create dust? A To remove it -- it was not easy to remove it. You typically -- in a commercial roofing environment you wear -- you know, you have a certain subset of work clothing that you wear over and over again. The cements would not come out of the fabrics very easily; they would be there for nearly as long as you had those work clothes. You could get the bulk of the cement off using washing techniques and things like that, but the base layer of the cement would be embedded in your work clothes . . . . (Id. at 138). **** Q My question is the removal of the cement, that is how you believe that your father was exposed to asbestos. -2- [* 4] I think that the cement that was on his body and on his person was the source of his exposure. (Id. at 139-40). A * * * l Q Okay. And would you agree with me, as I think you just mentioned, that the cement that was on his clothing wouldn t be a dusty process; would that also be true for the cement on his body? A No. Q I m sorry, no, you don t agree or no, you agree? A No. I don t agree. Q You don t agree, okay. So the cement on his body, the removal of that, you believe that would create dust? A In -- in the thin layer of the cement products they would form a dry f l . And so im removing bulk cement fiom the skin and from the clothing, what would be left would become dry,yes. Is that -- Q Okay, I see what you re saying. So the initial removal wouldn t get all of the cement.... And the cement that remained you believe would dry and then it would eventually flake, is that what you re saying? A I m saying that there would be residual cements on the clothing and on the person and that they were very difficult to remove, especially the cements that were on the work clothing. (Id. at 141). **** Q Is it correct that you never saw your father remove the cement from his body after he was using a cement that you believe was manufactured by Karnak? A I don t think that s true. Q Okay. So you have -- do you have a specific recollection of your father removing cement that you believe is manufactured from Karnak from his body? A Yes. (Id. at 142). **** Q . . . Do you have a specific recollection of your father washmg cement that you believe was manufactured by K m a k that created any dust? A. No. (Id at 144). The defendant argues that Mr. Bymes testimony is insufficient to defeat its motion because the plaintiff does not have a specific recollection of the decedent washing a Karnak product that created dust. But considering Mr. Byrnes testimony in its entirety, I hold there is sufficient -3 [* 5] evidence from which a reasonable trier of fact could conclude that the decedent was exposed to asbestos by reason of such product residually adhering to his skin and clothing, and flaking off when dry. The defendant therefore has not eliminated all material issues of fact sufficient to grant summary judgement in it s favor. See Reid,supra; see also, Dollas v W.R. Grace & Co., 225 AD2d 3 19,32 1 (1 st Dept 1996) ( The assessment of the value of a witnesses testimony constitutes an issue for resolution by the trier of fact . . . . ); Tronlone v Lac d Aminate du Quebec, Ltee, 297 AD2d 528,528-29 (1 st Dept 2002) (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). Accordingly, it is ORDERED that Karnak Corporation s motion for summary judgment is denied in its entirety. This constitutes the decision and order of the court. SHERRY @EIN HEITLER SEP 2 4 2012 -4- f.s.c.

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