Acevedo v A.P. Green Indus., Inc.

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Acevedo v A.P. Green Indus., Inc. 2013 NY Slip Op 30488(U) March 8, 2013 Supreme Court, New York County Docket Number: 116194/02 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. SCANNED ON 311112013 [* 1] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY Justice - . . - index Number: 116194/2002 I I L !?$z ACEVEDO, LUIS INDEX NO. vs. A.P. GREEN INDUSTRIES SEQUENCE NUMBER : 001 MOTION DATE t MOTION SEQ. NO. 0L7 I SUMMARY JUDGMENT _. The following papers, numbered I to Notice of MotionlOrder to Show Cause Answering Affidavits Replying Affldavits , were read on this motion tolfor INo(+ INo(4. INo(& -Affidavits - Exhibits - Exhibits Upon the foregoing papers, it is ordered that this motion is F ' 4 ,J.S.C. Dated: HON. SHERRY ..................................................................... 0 CASE DISPOSED DENIED ....MOTION IS: 0GRANTED 2. CHECK AS APPROPRIATE: .......................... I. CHECK ONE: 3. CHECK IF APPROPRIATE: ................................................ SETTLE ORDER 0DO NOT POST ~~~~~ HElTLER [ ] NON-FINAL DISPOSITION I 0GRANTED IN PART 0OTHER 0SUBMIT ORDER 0FIDUCIARY APPOINTMENT 0REFERENCE [* 2] cI SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 30 ___r_________ll____________I____________-~-r------------------ ---------- X Index No. 1 16194/02 Motion Seq. 001 LUIS ACEVEDO and SUSAN ACEVEDO, Plaintiffs, DECISION & ORDER - against A.P. GREEN INDUSTRIES, Inc,, et. al., In this asbestos personal injury action, defendant Lennox Industries, Inc. ( Lennox ) moves pursuant to CPLR 3212 for summary judgment dismissing the complaint and all crossclaims asserted against it. Plaintiffs Luis Acevedo and Susan Acevedo oppose on the ground that there is an issue of fact whether Mr. Acevedo worked with asbestos-containing Lennox-brand furnaces sufficient to preclude summary judgment. 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 v Lac d Aminate Quebec, Ltee, 297 du AD2d 528,528-29 (1st Dept 2002). To obtain summary judgment, themovant 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. Zuckerman v Ct ofNew York, 49 NY2d 557,562 (1980). The failure to make iy such a prima facie showing requires a denial of the motion regardless of the sufficiency of the opposing papers. Ayotte v Gewasio, 81 NY2d 1062, 1063 (1 993). In asbestos-related litigation, should the moving defendant establish its prima facie entitlement to judgment as a matter of law, -1- [* 3] 1 the plaintiff must then demonstrate that there was actual exposure to asbestos fibers released from the defendant s product. Cawcin v Flintkote Co., 203 AD2d 105,106 (1 st Dept 1994). In this regard, it is sufficient for the plaintiff to show facts and conditions fiom which the defendant s liability may be reasonably inferred, Reid v Georgia PaciJic Corp., 2 12 AD2d 462, 463 (1st Dept 1995). Mr. Acevedo was diagnosed with asbestosis on April 6,2002 and with lung cancer on March 1,2012. He was deposed in connection with this action on May 22,2012. Mr. Acevedo testified that he was exposed to asbestos fiom a myriad of products throughout his career as a gas line worker. Relevant to this motion is his testimony that he worked in and around boilers and the steam pipes associated therewith (Deposition pp. 54, 56): Q You mentioned earlier that you did work around boilers. Am I correct that that would be during the time that you did the work that was related to buildings? A Yes, Q Do you believe that there was anything about the work that you did around boilers that caused you to be exposed to asbestos? A Yes, I do. Q How so? A Well, I d go to some of these buildings and they re pretty old boilers and they re actually falling apart, some of these boilers, and you have to keep your eye on some of these boilers to get to the gas pipes. You have to remove some of these items out of the way and some of it could be asbestos flying through the air. . . , Q . . - do you believe that there was anything else that caused you to be exposed to , asbestos when you worked around the boilers or have you told me everything? A Well, the boiler itself, I would think some of them were lined with asbestos on the inside and that could ve been frail and dry. 1 A copy of Mr. Acevedo s deposition transcript is submitted as defendant s exhibit 2 ( Deposition ). -2- [* 4] MI-.Acevedo identified the defendant as one of several brands of boilers that lie worked I around and testified that dried, asbestos-containinginsulatioii flaked off such boilers into his vicinity (Deposition pp. 59-60): Q With respect to the old boilers that were sitting there, do you h o w the brand name, trade or manufacturer name of the old boilers that were sitting there? A I know some of them. American Standard, Burnham, Crown, Dunham, Lennox, Pacific, Superior, Weil-McLain. That s the ones I remember. . . . Q . . . Did you ever see the asbestos that you believe was located on the inside of any of the old boilers? A Yes, I have. Q What did it look like? A It was white and it s flaking off and it s dry. Q What form did it take? A Airborne. What do you mean form? Q What form did it take? What shape did it take? A Like a lining around -- around the boiler. The defendant s position on this motion is that it began manufacturing boilers in the early 199O s, long after the time period as to which plaintiffs claim Mr. Acevedo was exposed to asbestos, and that such boilers never even contained asbestos components.2 However, Lennox manufactured a line of furnaces which were similar in appearance to boilers and which served the same general purpose as boilers, a fact which this court recognized in Sadowski v A. 0. Smith Water Products, Index No. 190215/11 (Sup. Ct. NY Co. July 12,ZO 12, Heitler, J.). These Lennox furnaces integrated asbestos containing gaskets, rope, tape, cement, and board. (Plaintiffs exhibit 4 . ) 2 See affidavit of Lennox s former Corporate Service Manager of Residential Heating Products William Drake, sworn to July 26,2012, submitted as defendant s exhibit 3. -3- [* 5] u- Similar to Sadowski, supra, Mr. Acevedo was never asked to differentiatebetween a hrnace and a boiler, even though he used both the ternis "boiler" and ""furnace" when describing his alleged exposure (see Deposition p. 57). In light of same, as well as defendant's admission that it sold asbestos-containingfurnaces during the relevant time period, there remains a material issue of fact whether Leiinox furnaces contributed to plaintiffs' injuries. Accordingly, it i s hereby ORDERED that Lennox Industries, Inc.'s motion for summary judgment is denied in its entirety. This constitutes the decision and order of the court. J.S.C. vu-\, -4-

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