Hilpert v Air & Liquid Sys. Corp.

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Hilpert v Air & Liquid Sys. Corp. 2013 NY Slip Op 30845(U) April 22, 2013 Supreme Court, New York County Docket Number: 190077/11 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. I, [* 1] NNED ON412312013 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. S%-iERRY KLEIN HEITLEW PART Justice 30 - . Index Number : 190077/2011 PISANO, WILLIAM vs. ABEX CORPORATION MOTION DATE SEQUENCE NUMBER : 006 MOTION SEQ. NO. 6 SUMMARY JUDGMENT , were read on this motion to/for The following papers. numbered I to Notice of Motion/Order to Show Cause Answering Affidavits -Affidavits - Exhibits IWd. IW s ) . IW s ) . - Exhibits Replylng Affidavits Upon the foregoing papers, it I ordered that this motion is s FILED APR 23 2013 NEW VORK C O U N V CLERKS OFFICE Dated: (/-22-5 ..................................................................... u CASE DISPOSED 2. CHECK AS APPROPRIATE: ........................... MOTION IS: UGRANTED DENIED I. CHECK ONE: 3, CHECK IF APPROPRIATE: ................................................ [7 SETTLE ORDER 0DO NOT POST 0 NON-FINAL DISPOS 0GRANTED IN PART 0o SUBMIT ORDER u FIDUCIARY APPOINTMENT 0REFER [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 30 X ---__1___1________------~---------------~------------------~~--------- DEBRA A. HILPERT, as Administratrix of the Estate of WILLIAM PISANO Plaintiff, Index No. 190077/11 Motion Seq, 006, 007 DECISION & ORDER againstAIR & LIQUID SYSTEMS CORP., et al. Motion sequence numbers 006 and 007 are consolidated for disposition herein, in which defendants Crane Co. and Crane Pumps & Systems, Inc. (collectively Crane ) move for summary judgment pursuant to CPLR 3212. For the reasons set forth below, the motion is denied. Plaintiffs decedent William Pisano commenced this action on or about March 1,2011 to recover for personal injuries allegedly caused by his exposure to asbestos. Mr. Pismo was deposed over the course of six days in May of 201 1. Copies of his deposition transcripts are submitted as plaintiffs exhibits 1, 2, and 3. ( Deposition ). Mr. Pismo testified that he served in the United States Navy ( USN ) from 1946 to 1948 as a boiler room fireman s apprentice. During this time period he assisted in the overhaul of the USS Compton (DD-705) and USS Purvis (DD-709). Among other things, Mr. Pismo was charged with standing watch in the boiler room, repairing valves, and maintaining equipment. The defendants argue they are entitled to summary judgment because Mr, Pisano did not specifically identify any product manufactured or sold by Crane as a source of his exposure. In opposition plaintiff submits Mr. PisanoIs testimony that he was exposed to asbestos from valves -1 - [* 3] and pipes in the boiler rooms of the USS Compton and USS Purvis as well as archived USN ship records to show that Crane valves were utilized on both these ships in the precise areas wliere Mr. Pisano worked. Plaintiff thus contends that there is sufficient evidence f o n i which Crane's liability can be reasonably inferred, 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. Tronlone v Lac d 'Amiante du Quebec, Ltee, 297 AD2d 528, 528-529 (1st Dept 2002). To overcome summary judgment in asbestos-related litigation, the plaintiff need only show facts and conditions from which the defendant's liability may be reasonably inferred. Reid v Georgia PUCZJ~C 212 AD2d 462,463 (1 st Dept 1995). All Coip., reasonable inferences should be resolved in the plaintiffs favor. Dauman Displays, Inc. v Masturzo, 168 AD2d 204,205 (1 st Dept 1990). In this case, the Mr. Pisano testified with respect to his asbestos exposure while serving in the USN as follows (Deposition pp. 67-69, 7 1-72): Q- When you were on the Compton, were you a fireman apprentice? A. Yes. Q. The entire period? A. Yes. Q. Were you assigned to the boiler room? A. Yes Q. What were your duties after you left the Brooklyn Navy Yard aboard the Compton? A. I had to stand watch in the boiler room. Q. Anything else? A. I would check all the gauges far the water levels in the water tanks and the water levels in the boiler tanks. Q. Anything else? A. Stand watch on the fire burners and the boilers. -2- [* 4] Q. Do you have any reason to believe you were exposed to asbestos aboard the Compton after you left the Brooklyn Navy Yard? A. Yes. When I climbed up on the water tanks and checked the water levels, there was a lot of dust up is [sic] there. Q. Do you know where that dust was coming from? A. From all over the boiler room. Q. . . .Did you personally work with any asbestos when you were aboard the Compton? A. Yes. Q. What did you work with? A. All packing the valves when they leaked and any of the asbestos that would break loose fiom the pipes, re-pack that. Q. Did you replace the asbestos on the pipes? A. Yes. e . **** Q. Do you believe you were exposed to asbestos in any other way aboard the Compton other than what we've just talked about? A. Sometimes on watch I would go to the engine room, and there was asbestos in the engine room. Q. Where was the asbestos in the engine room? A. On the pipes, the valves. **** Q. After the Compton, did you serve on the Purvis? A. Yes. **** Q. What were your duties aboard the Purvis? A. They were there for major overhaul. They were doing the same repairs as the Compton did. **** Q. During that overhaul, what were you doing? A, Packing the valves and steam pipes and cleaning up the old material. Crane argues it is entitled to summary judgment because Mr. Pismo did not specifically identify Crane valves as a source of his exposure and because the blueprints subinitted by -3- [* 5] plaintiff in opposition (plaintiffs exhibit 5 ) refer to the USS Barton (DD-722) and the USS Sumner (DD-692), two ships on which Mr. Pismo never served. However, read in their entirety the documents indicate that the Crane valves depicted therein may not have been installed just on the USS Barton and USS Sumner, but on an entire class of destroyers during their initial construction, including the two destroyers Mr. Pisano served on. In light of the documentary evidence produced herein, coupled with the testimony, there is a triable issue of fact whether Mr. Pisano was exposed to asbestos from the defendants products sufficient to preclude summary judgment. Accordingly, it is hereby O R D E E D that the motions by Crane Co. and Crane Pumps & Systems, Inc. for summary judgment are denied in their entirety. This constitutes the decision and order of the court. J.S.C. -4-

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