Diamond v A.C. & S., Inc.

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Diamond v A.C. & S., Inc. 2012 NY Slip Op 31362(U) May 17, 2012 Sup Ct, New York County Docket Number: 104308/02 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] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY Index Number : 104308/2002 DIAMOND, JERRY INDEX NO. VB Ocf30bjoL MOTION DATE A.C.&S. MOTION SEQ. NO. Sequence Number : 001 SUMMARY JUDGMENT ,were read on thlr motlon tO/fOr The followlng papers, numbered I to Notlce of MotlonlOrder to Show Cause - Affldavlta - Exhlbb INo(s). INO(#). IWd. - Exhlblh Aniwerlng Affldavltr 0b / Roplylng Affldavlts &* J.S.C. I.CHECK ONE: ..................................................................... 2. CHECK AS APPROPRIATE: 3. CHECK IF APPROPRIATE: ........................... MOTION IS: ................................................ 0 NON-FINAL DISPOSITION 0QRANTEDIN PART 0OTHER 0SUBMIT ORDER FIDUCIARY APPOINTMENT 0REFERENCE 0 CASE DISPOSED 0GMNTED 17DENIED SETTLE ORDER 0DO NOT POST [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 30 -_________________________________________ X Index No. 104308/02 JERRY DIAMOND and JOANN DIAMOND, Motion Seq, 001 Plaintiffs, DECISION AND ORDER In this asbestos-related personal injury action, defendant Maremont Corporation ( Maremont ) moves pursuant to CPLR 32 12 for summary judgment dismissing the complaint and all other claims against it. 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, See Tronlone v Lac d Aminatedu Quebec, Ltee, 297 AD2d 528, 528-29 (1st Dept 2002). 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 issues of fact. See Zuckerrnan v City ofNew York, 49 NY2d 557,562 (1980); CPLR 3212(b). In asbestos-related litigation, once the movant has made aprima facie showing of its entitlement to summaryjudgment, the plaintiff must then demonstrate that there was exposure to asbestos fibers released from the defendant s product. Cuwein v Flintkote Co., 203 AD2d 105, 106 (1st Dept 1994). In this context, the plaintiff need only show facts and conditions from which the defendant s liability may be reasonably inferred. Reid v Georgia-Pacific Corp., 212 -1- [* 3] AD2d 462,463 (1st Dept 1995). Plaintiff Jerry Diamond was deposed on August 3,2010. A copy of his deposition transcript is submitted as plaintiffs exhibit 1 ( Deposition ). His testimony is that during his employment as a mechanic between 1954 and 1961 he worked with Maremont mufflers. He plainly testified that he was exposed to asbestos from such activity (Deposition pp. 328-30): Q: Do you specifically recall ever removing a Maremont muffler from any vehicles during your professional career? A: Yes. Q: How would you know it was a Maremont muffler that you were removing? A: To the best of my recollection, okay, the Maremont muffler, some Maremont mufflers had asbestos around them, okay, heat shields, to the best of my recollection. Q: How do you know that it WBS asbestos lining that was around the Maremont muffler? A: It s common knowledge, you know, that s what was around the mufflers. **** Q: Can you describe for me how there was dust during the removal process of the muffler? A: There was dust from the rust, okay. And if it was a mufller that had a shield on it, a okay, there w s a lot of dust that came out of that asbestos from the muffler. **** Q: Did you actually see the asbestos? A: Yes. Q: How could you tell it was asbestos as opposed to non-asbestos wrapping? A: Because you just knew that it was asbestos. It was like a, like batting with speckles in it and you know that that was for the heat, that s what kept the heat off the bottom of the car. Q: Do you recall ever seeing any writing on a Maremont muffler? A: Not to my recollection. I m sure I read it at some point but I don t remember when. Defendant s position is that the Maremont mufflers described by Mr. Diamond simply -2- [* 4] could not have contained asbestos. The defendant also asserts that, since they were encapsulated, even if Mr. Diamond had worked with asbestos-containing Maremont mufflers he could not have been exposed to asbestos therefiom. In support the defendant relies entirely on the affidavit of former Maremont employee Carl Liggett, sworn to January 30,2012 ( Defendant s Exhibit D ). Mr. Liggett served as Maremont s Vice President of Operations for its friction product division at its Tennessee and Ohio manufacturing facilities from 1973 to 1977. In his affidavit, Mr. Liggett avers that all asbestos-containing Maremont mumers were visibly stamped with the words Asbestos Wrapped to reflect this feature, Defendant s exhibit D, T[ 4. Defendant argues that since Mr. Diamond did not testify to seeing any such phrase on the mufflers he worked with, they necessarily did not contain asbestos. Mr. Liggett also avers that all Maremont mufflers which contained asbestos paper would havq been completely covered by an outer metal shell. In this respect, Mr. Liggitt concludes that Mr. Diamond simply could not have seen asbestos fibers sticking out of a Maremont muffler. Id. 7 5 . Defendant s reliance on Mr. Liggett s affidavit is misplaced. For one, the fact that h4r. Diamond did not recall seeing writing on the mufflers at issue is not dispositive. Indeed, he explicitly testified that he observed actual asbestos fibers emanating from same. In addition, while Mr. Liggett s conclusions are stated to be based in part on his review of corporate documents, the defendant has not submitted a single catalog or specification to accompany the Liggett affidavit, thus rendering the defendant s assertions on this motion conclusory. See Ayotte v Gewasio, 81 NY2d 1062 (1993). In reality, the most that Mr. Liggett s affidavit does is to create conflict with Mr. Diamond s testimony. As such, the court is essentially left with questions of credibility which cannot be determined as a matter of law. The weight of the -3- [* 5] evidence to be given to Mr. Diamond's testimony in light of Mr. Liggett's affidavit presents a triable issue of material fact which can only be decided by the trier of fact. See Dollas v KR. Grace d Co., 225 AD2d 319, 321 (1st Dept 1996). Accordingly, it is hereby ORDERED that Marernont Corporation's motion for summary judgment is denied in its entirety. This constitutes the decision and order of the court. /I -4-

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