Deer v Air & Liquid Sys. Corp.

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Deer v Air & Liquid Sys. Corp. 2012 NY Slip Op 32876(U) November 30, 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. [* 1] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. SHERRY KLEIN HElfLER PART 3b Index Number : 190261/2011 DEER, MAXWELL INDEX NO. 1 ?oZbi/i/ vs MOTION DATE AIR & LIQUID SYSTEMS MOTION SEQ. NO. 0 03 Sequence Number : 003 SUMMARY JUDGMENT The following papers, numbered 1 to Notice of Motion/Order to Show Cause Answering Affidavits , were read on this motion tolfor -Affidavits - Exhibits I Wd. - Exhibits IN W . IW s ) . Replying Affidavits Upon the foregoing papers, it is ordered that this motion is FILED ..................................................................... CASE DISPOSED 2. CHECK AS APPROPRIATE: .............. MOTION IS: 0GRANTED DENIED 1. CHECK ONE: 3. CHECK IF APPROPRIATE: ................................................ SETTLE ORDER DO NOT POST ~NON-FINAL DISPOSITION GRANTED IN PART 0OTHER 0SUBMIT ORDER 0FIDUCIARY APPOINTMENT 0REFERENCE [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW Y O U : PART 30 X Index No. 190261/ 11 Motion Seq. 003 MAXWELL DEER AND CAROLYN DEER, DECISION & ORDER Plaintiffs, -againstAIR & LIQUID SYSTEMS CORPORATION, et al., Defendants. X _ - - - - - - _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ l SHERRY KLEIN HEXTLER, J.: In this asbestos-related personal injury action, defendant Crane Co. ( Crane ) moves for summaryjudgment pursuant to CPLR 3212. For the reasons set forth below, the motion is denied. BACKGROUND Plaintiff Maxwell Deer was diagnosed with lung cancer in March o f 201 1. In July of 201 1 Mr. 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 13-14,2011 and on October 17-18,2011. Copies of his deposition transcripts are submitted as defendant s exhibit C ( Deposition ). Relevant to this motion is Mr. Deer s testimony that he was exposed to asbestos from 1946 to 1948 while serving in the United States Navy ( VSN ) as a seaman, fireman, and boiler tender. During this time period he served aboard the USS Rochester, USS Toledo, USS Columbus, and USS Iowa. Among other things, Mr. Deer testified that he was exposed to asbestos aboard these ships while maintaining and repairing, or being in the vicinity of others who worked on, shipboard pumps and valves. Crane argues that although Mr. Deer initially claimed to have replaced gaskets and packing on Crane valves while serving as a USN fireman and boilerman, he later testified that could not say specifically when or where he ever worked on or was present when others worked E & a & -1- Q DEC = 5 2012 [* 3] Crane submits that Mr. Deer s identification of its valves in this regard is merely speculative and as such is insufficient to form a basis upon which liability can be attributed to it. In opposition plaintiffs submit official records which they allege confirm the presence of Crane valves aboard all four ships during the time of Mr. Deer s USN service. Plaintiffs contend that these records combined with Mr. Deer s deposition testimony raise triable issues of fact as to Crane s liability sufficient to preclude summaryjudgement. DISCUSSION To make apvima facie case, a party moving for summary judgment must demonstrate the iy absence of any material issue of fact. See Zuckerman v Ct oflvew York, 49 NY2d 557,562 (1980), CPLR 3212(b). In asbestos-related litigation, if a defendant has made a prima facie showing of entitlement to summary judgnient, the plaintiff must then demonstrate actual exposure to asbestos fibers released from the defendant s product, Cawein v Flintkote Co., AD2d 105, 106 (1st Dept 203 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 Corp., 212 AD2d 462,463 (1st Dept 1995). Here, plaintiffs submit records pertaining to the USS Columbus (Plaintiffs Exhibit B), USS Iowa (Plaintiffs Exhibit C), USS Rochester (Plaintiffs Exhibit D), and USS Toledo (Plaintiffs Exhibit E) to show that Crane valves were present aboard these ships. Crane argues that these documents are irrelevant because they pre-date Mr, Deer s naval career, do not reference asbestos, and while they show that Crane valves were present on these ships, they do not show that Mr, Deer was exposed to asbestos. Mr. Deer also described in detail how he believed he was exposed to asbestos from work performed on the valves aboard these ships. (See Deposition pp. 293-295, 400-404). At issue is -2- [* 4] whether he sufficiently identified valves manufactured by Crane as a source of such exposure. In this regard, Mr. Deer testified on direct examination, in relevant part, as follows (Deposition pp. 58, 59, 89, 95-96, 109): Q. When you were assigned as a fireman, do you believe that you personally worked with any products or materials that you believe contained asbestos? A. Yes. **** Q. As a seaman, do you know the brand name or manufacturer of the valves? A. Crane is one that comes to mind. Worthington, Ingersoll-Rand, Rockwell. That s it. **** Q* Can you tell me the brand name or manufacturer of any other products, materials or equipment that any of these people were working around you in your vicinity? . . . . A. Okay. It depends what they was working on. If they was working on valves, there would be a Crane, Rockwell, a Yarway. Those three are the ones I can think of right now. **** Q. Do you recall the brand name or manufacturer of any of the valves that you were working on? A. Rockwell, Yarway, Crane, Fairbanks. That s it. **** Q* You talked about performing some general maintenance and you mentioned valves. As you re sitting here right now, can you specifically recall the brand name or manufacturer of tlie valves that you worked on when the ship was at Long Beach? A. Yeah. And Crane, Crane was one. Fairbanks was another. Yarway was another. Rockwell was another one. Crane argues that on cross-examination Mr. Deer demonstrated he had no actual knowledge that he was exposed to asbestos fiom Crane valves (Deposition pp. 300-30 1, objections omitted): Q. Okay. During day one of your testimony I ll represent to you that you mentioned or made reference to if other people were working on valves you may have been exposed to asbestos, and I m paraphrasing, and you mentioned Crane, Rockwell and another name. As you sit here today, do you know whether or not you were ever in proximity to any Crane valve that was being worked upon on the Rochester? . . . A. I cannot say. I was top side sailing. There s very few valves top side . . . . -3 - [* 5] Q. So the answer to my question is, you can t tell me whether you ever worked in the proximity of someone else working on any Crane valves aboard the USS Rochester?. . . A, I cannot say that. All I can tell you is that I could have been assigned to an area where they was working on a Crane valve and I didn t know it was a Crane valve .... Similar testimony was elicited from Mr. Deer with respect to the other three ships on which he served. (See Deposition pp. 302-303,305306). I find that the documentary evidence and Mr. Deer s testimony together raise material questions that should be determined by a jury. The documents permit a reasonable inference that Crane valves had been installed on the relevant ships during the relevant time period. Moreover, Mr. Deer s testimony on cross-examination does not render plaintiffs claims speculative, but rather in conflict with his assertions on direct. In this regard, it is well settled that in the face of conflicting testimony the court should not access the witness credibility. See Dollus v WR. Grace & Co., 225 AD2d 3 19, 32 1 (1st Dept 1996). Ultimately, the court cannot ignore Mr. Deer s testimony that he was exposed to asbestos aboard ship from Crane valves, which under these circumstances, and in light of the record, is sufficient to defeat summary judgment. Accordingly, it is hereby ORDERED that Crane Co. s motion for summary judgment is denied in its entirety. This constitutes the decision and order of the court. SHERRY KLEIN HEITLER J.S.C. -4-

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