Smith v A.C. and S

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Smith v A.C. and S 2012 NY Slip Op 32633(U) October 11, 2012 Supreme Court, New York County Docket Number: 126765/02 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. SCANNEDON I011712012 [* 1] SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY 3u 9 PRESENT: HON. SHERRY KLEIN HEITLER PART --. Justice INDEX NO. MOTION DATE -vMOTION SEQ. NO. The following papers, numbered 1 to Notice of Motion/ Order to Show Cause Answering Affidavits were read on this motion tolfor - Affidavits - Exhibits ... - Exhibits Replying Affidavits Cross-Motion: Yes II PAPERS NUMBERED No Upon the foregoing papers, it is ordered that tMs motion is decided in accordance with me memorandum decision dated /a Dated: /o 12, Check one: FINAL DISPOSITION Check if appropriate: DO NOT POST 0 SUBMIT ORDER/ JUDG. 0 REFERENCE 0 SETTLE ORDER/ JWDG. P - b [* 2] SUPREME COURT OF THE STATE OF.NEW YORK COUNTY OF NEW YORK: PART 30 _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ l _ l _ e _ _ _ r l _ _ l _ l _ _ _ l BEATRICE SMITH, as Executrix o f the Estate of WILLIS R. GAVIGAN, Index No. 126765102 Motion Seq. 002 DECISION & ORDER Plaintiff, I x against - In this asbestos-related personal injury action, defendant C u t r & Co. ( Cowta ) ore 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 - - Ob 8 GOO+ Plaintiffs decedent Willis Gavigm is alleged to have develop - $sovr lated pleural +&t disease and laryngeal cancer BS a result of his occupational exposure to asbestos-containing materials. Relevant to this motion is plaintiffs allegation that Courter steamfitters working in proximity to Mr. Gavigan at the Astoria powerhouse located in New York (( Astor ) dwing the early 1960 s and at the Ravenswood powerhouse, also located in New York,during the mid1970 s( Ravenswood ), contributed to such exposure. Before he could be deposed, Mr. Gavigan passed away in March of 2009. Hs longtime i co-worker, Mr. John Shaughnessey, was produced to testify on his behalf wt regard to both ih 1 [* 3] powerhouses. Courter argues it is entitled to summaryjudgment with respect to Ravenswood because Mr. Shaughnessey was unable to specifically place Mr. Gavigan in the vicinity o f Courter employees at that powerhouse. With respect to Astoria, Courter relies on Mr. Shaughnessey s testlmony that steamfitters could perform their duties without releasing any asbestos-containing material into their surroundings. C u t r also relies on Mr. Shaughnessy s testimony that the ore steamfitters and other trades did not work directly underneath Mr. Gavigan while he and Mr. Shaughnessey were welding. In opposition plaintiff points to Mr. Shaughnessey s testimony that C u t r was the only steamfitter outfit at Astoria and that their activities caused asbestos dust to ore fill the air around them. Plaintiff argues that h r Shaughnessey stestimony raises a material 4. issue of fact regarding Cower s liability sufficient to preclude summary judgment. DISCUSSION Summaryjudgment 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 Y Lac d Aminatedu Quebec, Ltee, 297 AD2d 528,528-29 (1st Dept 2002). To obtain. summary judgment, a movant must establish its cause of action or defense sufficiently to wasrant judgment in its favor a a matter of law, and s must render sufficient evidence to demonstrate the absence of any material issues of fact. CPLR 3212(b); Zuckerman v City o New York, 49 NY2d 557,569 (1980); Mechanical COT. v Afga f Mechanical Services,Inc., 71 AD3d 493 (1 st Dept 2010). 1 h4r. Shaughnessey originally submitted an affidavit in connection with this case which was sworn to on November 28,201 1 (Plaintiff s exhibit A). By arrangement with the defendant he was later was deposed on Tuesday June 5, 2012 (Plaintiffs exhibit B, Deposition ). 2 [* 4] Where the proponent of the motion makes aprirnafacie showing of entitlement to summary judgment, the burden shifts to the party opposing the motion to demonstrate the existence of a factual issue. Vermette v Kenworth Truck-Co., NY2d 714,717 (1986). In 68 asbestos cases, the plaintiff must show that there was exposure to asbestos fibers released from the defendant s products. Cawein v FZiintkote Co., 203 AD2d 105, 106 (1st Dept, 1994). Moreover, the plaintiff is not required to show the precise causes of his damages, but only to show facts and conditions from which defendant s liability may be reasonable inferred. Reid v Georgia PaciJic Gorp., 2 12 AV2d 462,462 (1 st Dept 1995). Mr. Shaughnessy worked with Mr. Gavigan at Astoria in or about 1962 and at Ravenswood in or about 1976, He averred that he and Mr. Gavigan were exposed to asbestos from Courter employees (plaintiffs exhibit A, 7 5): . . .Courter & Company employed the Steamfitterswho would work on pumps and valves, scraping this asbestos insulation off and changing asbestos gasket material. The asbestos gasket material had to be cut and hammered out from sheet material to fit flanges at the connection of pipes and valves. A of this work created asbestos dust which Mr. I Gavigan and I inhaled. At his deposition, Mr. Shaughnessey confirmed that he and Mr. Gavigan were both rnmbers of boilermakers union Local 5 in New York City beginning in the early 1960 s and as such worked together at various powerhouses. He testified to his belief that Courtw steamfitters were present at both the Ravenswood and Astoria powerhouses during the times he and Mr. Gavigan worked there (Deposition p, 57-59, objections omitted): Q A we ve already discussed at the Ravenswood, is there any other way that you believe Mr. Gavigan was exposed to asbestos during the time you worked there together? . . . . Other than the work Like I said, you walked around those powerhouses, that stuff was coming down. The big steam lines are covered with it and a little vibration here and there, the 3 [* 5] dust would be raining down, you know. Q So am I correct what you re refaring to is insulation -- A Right. Q -- that would ve been coming off of steam lines? A Right, you walk out it would be on your clothes and stuff. Q And that insulation would ve been coming off due to vibrations f o plant rm operations? A Q The people who would ve disturbed the insulation on the steam lines, were these also Thomas O Comor boilermakers? A They could ve been steamfitter, they could ve been boilermakers, you know. I don t know if Courter w s in there or what. I know there was one stearnfitter a outfit. Q Do you have a specific recollection of seeing Courter steamfitters at the Ravenswood powerhouse during the time you worked there wt Mr. Gavigan?. . . ih A No, just from people make lifts and they hit the side wall with something. There are people on scaffolds going up and down. There s always something going on. I d say yes, but then I get mixed up with Ravenswood and Astoria, because 1was going back and forth. I d say they are in both powerhouses. **** Q Can you tell me w e h r the C u t r steamfitters were onsite specifically the t h e hte ore you worked there with Mr. Gavigan?. . . A I d say they were there. Mr. Shaughnessey later testified that Mr. Gavigan was exposed to asbestos as a result of the work of C u t r steamfitters at Astoria (Deposition p, 78-80, 149, objections o i t d : ore mte) Q Other than the use of an asbestos blanket to perform the welding work, do you believe Mi. Gavigan would have been exposed to asbestos in any other way fiorn fixing this main beam in the building? . . . A Well, like I said, they had steamfitters working on the valves there again. Courter was there. They had electricians running around disturbing asbestos that would have been already put down. Q Now, with regard to steamfittersyou just mentioned the name C u t r ore. A Right. Q Do you recall observing Courter steamfitters at the Astoria powerhouse -- 4 [* 6] A Yes. Q -- when Mr. Gavigan was present? A Right. Q Do you recall seeing Courter steamfitters working in the vicinity of Mr. Gavigan at the Astoria powerhouse? A Well, they were around us, You know, they were on the side, both sides and stuff. We were up top and they were underneath us, like, so. Q Can you tell me how far underneath you and Mr. Gavigan the steamfitters were working? A Twenty feet or so. **** Q Do you recall what work specifically the stmfitters were performing at the Astoria powerhouse? A Working on valves. They got valves on every floor. Q Can you describe for me the work that the steamfittersperfomed on valves at the asbestos powerhouse? A They had asbestos gaskets they put in and &hey seal and took up with the bolts, the ratchet wrenches that seal them together. **** Q You stated that Bob w s exposed to asbestos f o the work of Courter a rm steamfitters in Astoria? A Well, there was a lot of fitters there working mound, you know, with gaskets and stuffand asbestos was floating around the building. As I said, it would start up in the penthouse and they start laying that asbestos all over the place, on the side walls, and so it was raining asbestos. Q I mjust focused on the C u t r steamfitters. I know there was a lot of asbestos in ore a lot of other places, too, but as far as the work that the Courta stemfitters go [sic] at Astoria, the times that you were there, was Bob exposed to asbestos from their work? A I would say yes. Cowter claims that for safety reasons its steamfitters could not have worked underneath Mr. Gavigan s welding station at Astoria (see Deposition pp. 132-33): Courter further argues that, even assuming Mr. Gavigan did work above them despite the safety hazards associated with 5 . [* 7] their work, there is no evidence that Courter employees utilized or disturbed asbestos-containing products in Mr. Gavigan s presence. To the contrary, Mr. Shaughnessey s testimony identifies Courter as a source of Mr. Gavigan s exposure at both Ravenswood and Astoria sufficient to defeat summary judgment. While his testimony may be in conflict at times, on a motion for sumrnasy judgment the court is not to determine the witnesses credibility, but w e h r there exists a factual issue requiring a hte trial. Ferrante v American Lung Asm., 90 NY2d 623,63 1 (1997); GulfIns. Co. v Transatlantic Reinsurance Co., 69 AD3d 71,86 (1 st Dept 2009); Dollas v W R Grace di Co., 225 AD2d 3 19, 321 (1st Dept 1996). Accordingly, it is hereby ORDERED that Courter & Co. s motion for sumnary judgment is denied in its entirety. This constitutes the decision and order of the court. 6

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