Bickel v Air & Liquid Sys.Corp.
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Bickel v Air & Liquid Sys.Corp. 2011 NY Slip Op 33187(U) December 7, 2011 Sup Ct, NY County Docket Number: 190311/10 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 1211312011 [* 1] STATE OF NEW YORK COUNTY BICKEL, ALVIN vs. AIR & LIQUID SYSTEMS pi: m ~ JI)I~ . SEQUENCE NUMBER : 003 ~ - PART / &e 3o SUMMARY JUDGMENT MOTION DATE MOTION SEQ NO. The following papers, numbered 1 to Notlce of MotlonlOrder to Show Caure Answerlng Af tldavb 003 , were read on thlr motlon toffor - AffldavlG - Exhlblta INo(s). INds). INo(s). - Exhlblts Replylng Affldavlb Upon the foregoing papem, It Is ordered that this motlon Is l i & , J.S.C. HON. SHERRY K L ~ I N HEITLER 1. CHECK ONE: ..................................................................... 2. CHECK AS APPROPRIATE: ........................... MOTION IS: 3. CHECK IF APPROPRIATE: ................................................ 0 CASE DISPOSED 0 NON-FINAL DISPOSITION 0OTHER 0DENIED GRANTED IN PART GRANTED 0SUBMIT ORDER 0SETTLE ORDER 0DO NOT POST FIDUCIARY APPOINTMENT 0REFERENCE [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 30 X _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ r _ _ _ _ _ _ _ _ _ _ _ ALVIN BICKEL and MARZAN BICKEL, Index No. 190311/10 Motion Seq. 003 Plaintiffs, DECISION AND ORDER - against - AIR & LIQUID SYSTEMS COW. AS SUCCESSOR BY MERGER TO BUFFALO PUMPS, INC., et al. Defendants. X _-________ -__-_-___l____ll___________ K.: In this asbestos personal injury action, defendant Aurora Pump Company (hereinafter, Aurora ) moves pursuant to CPLR ยง 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 Plaintiff Alvin Bickel served in the U.S. Navy from 1960 to 1964 as a gunner s mate aboard the USS Lake Champlain and USS Constellation and testified on October 13,2010 ( Deposition ) that he was exposed to asbestos in different locations aboard both ships. Mr. Bickel s primary responsibilities included chipping paint, moving equipment, and maintaining bomb elevators. Though he did not work directly on any mechanical equipment, plaintiffs claim that Mr. Bickel was exposed to asbestos from insulation that was installed on and used to maintain such equipment, namely valves, purnps, and boilers. Aurora filed this motion for summary judgment on the ground that Mr. Bickel did not identify any product manufactured by it as a source of his exposure. Aurora argues that any circumstantial evidence showing that its pumps were manufactured for use aboard the USS -1- [* 3] Constellation is insufficient to establish a time and place connection between Mr. Bickel and Aurora equipment so as to raise questions as to its liability herein. In opposition, plaintiff argues that there is sufficient documentary evidence to show that Aurora pumps were present onboard the USS Constellation and as such triable issues of fact exist with regard to Aurora s liability. DISCUSS ION To obtain summary judgment, the movant must establish its cause of action or defense sufficiently to warrant a court s directing judgment in its favor as a matter of law, and must tender sufficient evidence to demonstrate the absence of any material issue of fact. See Zuckerman v City o New York, 49 NY2d 557,562 (1 980) CPLR f 5 32 1203). In asbestos-related litigation, once the movant has made aprima facie showing of entitlement to summary judgment, the plaintiff must then demonstrate actual exposure to asbestos fibers released fiom the defendant s product. Cawein v Flintkote Co., 203 AD2d 105, 106 (1st Dept 1994). While plaintiffs are not required to show the precise causes of their damages, they are required to show facts and conditions from which defendant s liability may be reasonably inferred. Reid v Georgia Pacific COT., 2 12 AD2d 462,463 (1st Dept 1995). In this case, Aurora has made aprima facie showing of its entitlement to summary judgment by demonstrating that Mr. Bickel failed to identify any of its products as a source of his exposure. Nevertheless, plaintiffs have met their burden by, among other things, producing plant load reports which indicate that a large number of Aurora pumps were installed aboard the USS Constellation, including (but not limited to) fuel aviation, fuel aviation seawater, and heavy end aviation fuel pumps. This, in conjunction with Mr. Bickel s testimony that he was exposed to asbestos from pumps being dismantled in the engine rooms in h s presence is -2- [* 4] sufficient to raise a question of fact regarding his exposure from Aurora pumps aboard the USS Constellation. See Henderson v C i g ofhrew York, 178 AD2d 129 (1st Dept 1991). In this regard, Mr. Bickel testified as follows (Deposition, pp. 62-66, 157-58, objections omitted): Q* During the time that you were on board the USS Constellation, do you believe that you were exposed to asbestos? A. Yes. Q. Did you personally, handle any products on board the Constellation? A. No. Q. How do you believe you were exposed? A. Again, just being in the air. **** Q. ...[D]o you believe that you were exposed to asbestos as a result of any other asbestos-containing products on board the Constellation? A. I traveled on occasion down in the engine room compartments, again, both interfaced with electricians. I would describe work to them, and just traveling through the area, exploring it, **** Q. Can you tell me specifically what products were believe you were exposed to in the engine room? A. Again, it was the insulation asbestos that was insulating the motors, the pumps and boys doing maintenance on all that stuff. **** Q. When you went down to those [engine] areas, did you see the men working down there? A. Yes. Q. What were they doing? A. They were mainly working on motors. I mean, pumps and the boilers and all different things, types of thmgs, valves. You know, at different times there were different things they were working on, In light of the testimony, this court finds Judge Freedman s holding in McKeon v A. J X -3- [* 5] Chesterton, et al., Index No. 113240/05 (Sup. Ct. NY Cty. Dec. 15,2006, n.0.r.) to be highly persuasive. In that case, plaintiff Joseph McKeon served as a rigger who worked in the vicinity of steamfitters. Like Mr. Bickel, Mr. McKeon failed to identify Aurora pumps as a source of his exposure. However, the court denied summaryjudgment, finding that as there were at least 38 Aurora pumps aboard the USS Constellation there was sufficient circumstantial evidence to raise triable issues of fact. Here, as in Mckeon, there is a reasonable inference that Mr. Bickel was exposed to Aurora pumps that were present in the USS Constellation engine rooms. See Mckeon, supra; see also Reid v Georgia Pacific C o p , 212 AD2d at 463. At the same time, Aurora s reliance on D Amico v Manufacturers Hanover Trust Co., 173 AD2d 263,266 (1 st D q t 1991) is misplaced. In that case, the court granted the defendant summary judgment because it could not determine the manufacturer of a ladder as between two different companies. The court held that there was simply no documentary proof whatsoever that might permit a reasoned inference that [the defendant] was the manufacturer of the ladder. Id. Here, for one, the court is not being asked to choose between two competing products as the source of Mr. Bickel s exposure. Indeed, the record contains no evidence that a manufacturer other than Aurora had its pumps installed aboard the USS Constellation. Moreover, it is undisputed that many Aurora pumps were present aboard that ship, thus giving rise to a reasonable inference that the defendant manufactured at least some of the pumps Mr. Bickel saw being worked on in his presence and which caused him to be exposed to asbestos. This court s decision in Diglio v A. F Chesterton Co., K Index No. 190166/10 (Sup. Ct. N.Y. Cty. Aug. 9,201 1, n.0.r.) is also inapposite. In that case, the court held that even though the record may have been sufficient to place defendant s asbestos-containing products at the -4- [* 6] plaintiff's job site, this was not sufficient to show that the plaintiff was exposed to asbestos therefrom. Mr. Bickel, on the other hand, testified that he traversed the engine rooms where he interfaced with other maintenance workers, including electricians, and spccifically identified the insulation on the engine room pumps as a source of his asbestos exposure. Inasmuch as plaintiffs have met their burden of proof, summary judgment is inappropriate. See Cawein, supra; Henderson, supra. Accordingly, it is hereby ORDERED that Aurora Pump Company's motion for summaryjudgment is denied This constitutes the decision and order of the court. A DATED: December ,2011 SHERRY K L E ~ H E I T L E R J.S.C. -5-
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