Janits v A. O. Smith Water Products

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Janits v A. O. Smith Water Products 2013 NY Slip Op 32096(U) September 4, 2013 Sup Ct, New York County Docket Number: 190084/12 Judge: Sherry Heitler Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] SCANNED ON 91912013 SUPREME COURT OF THE STATE O F NEW YORK NEW YORK COUNTY PRESENT: - N. SHERRY KtEt Justice - Index Number: 190084/2012 JANITS, FRANK vs. A.O. SMITH WATER PRODUCTS SEQUENCE NUMBER : 005 INDEX NO. ,qoo 84jL MOTION DATE MOTION SEQ. NO. (2cf SUMMARY JUDGMENT Notice of MotionlOrder to Show Cause -Affidavits Answering Affidavits - Exhibits INoh). INo@). IW s ) . - Exhibits Replying Affidavits Upon the foregoing papers, it is ordered that this motion is in accorhce with the w tllernumndum.decision dated E cn 9- c/ I , - 2 0 I- P Lu K (JL Lu u . Lu 0: FILED .. COUNTY CLERK'S OFFICE NEW YORK ,J.S.C. HON. SHERRY KLEIN HEITLER ..................................................................... CASE DISPOSED CHECK AS APPROPRIATE: ........................... MOTION I : S GRANTED 0DENIED CHECK IF APPROPRIATE: ................................................ SETTLE ORDER 0 1. CHECK ONE: 2. 3. 0DO NOT POST NON-FINAL DISPOSITION 0GRANTED IN PART 0OTHER 0SUBMIT ORDER 0FIDUCIARY APPOINTMENT 0REFERENCE [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 30 DECISION & ORDER Plaintiffs, - against - FILED A.O. SMITH WATER PRODUCTS., et al. SHERRY KLEIN HEITLER, J.: CLERK S OFFICE f W 3 V YORT Defendant Rheem Manufacturing Company ( Rheem ) moves pursuant to CPLR 2 12 for summary judgment dismissing the complaint against it on the ground that there is no evidence to show that plaintiff Frank Janits was exposed to asbestos fibers reIeased from a product manufactured, sold, supplied, distributed, or specified by Rheem. Plaintiffs position is that Mr. Janits testimony which identifies Rheem furnaces as a source of his exposure gives rise to a triable issue of fact. Plaintiffs commenced this action on February 16,2012 to recover damages for personal injuries allegedly caused by Mr. Janits exposure to asbestos-containing products he encountered from 1965 to 2004 during his career as a roofer, water-proofer and construction worker. Mr. Janits was deposed over the course of five days between March 27 and May 14, 2012.2 He testified that he was exposed to asbestos while working in the vicinity of boilermakers and plumbers who installed, removed and repaired asbestos-containingheating systems. With 1 Mr. Janits currently suffers from colorectal disease and lung cancer. 2 Mr. Janits deposition transcripts are submitted as defendant s exhibits A-E. -1- [* 3] respect to the defendant, Mr. Janits testified that he was exposed to asbestos from work other trades performed on Rheem equipment in his presence (defendant s exhibit E, pp. 66648,757758, 765-67, objections omitted): Q. Throughout your testimony, you mentioned that you worked around some heating systems, correct? A. Yes. Q. One of the companies that you recalled was Lennox. Do you recall that testimony? A. Yes. Q. Are there any other heating system [sic] or furnaces that you recalled working around throughout your career that caused you to be exposed to asbestos? A. I worked around a bunch of them. Rheem. Q. Do you know what trades would work on Rheem furnaces? .. . A. I guess the mechanics. I don t know. It would have to be, I imagine their -- I don t know. I would say it would be a mechanic would do the same thing. They would call a mechanic to fix it. Q. What were the mechanics doing on the Rheem b a c e s ? . . . A. Well, you have to take them apart and fix them. Q. Do you believe you were exposed to asbestos when the mechanics would take apart and fix the Rheem furnaces? . . . A. Yeah, they had to take the asbestos out to get to the parts they had to get to. . . . Q. What about the process do you believe caused you to be exposed to asbestos? . . . A. The stuff floating in the air fi-om taking out the asbestos. Q. Okay. Did you breathe that asbestos? A. Yes. Q. Do you believe that caused you to be exposed to asbestos? A. Yes. **** Q. Can you approximate the dimension of the Rheem furnace. Let s start with the -2- [* 4] height. How tall was it? A. It was taller. Q. Taller than you? A. I believe so. Q. How tall are you, sir? A. Six-foot.. . . Q. What about the width? A. Ireally don t know. . . . Q. Depth? A. Don t know. **** Q- Now sir, other than generally saying that you just recall seeing some type of maintenance or repair work performed on a Rheem fwnace, are you able to tell me what specific work you recall being performed on a Rheern furnace? A. I don t know what they were doing inside. You pull all the insulation out of it, I know that. What they put in it or what they took out of it, I don t know. Q. How do you know they took all the insulation out of it? A. They took a big piece of insulation out, so I imagine they had to get it out so they could get to the part that they needed to fix, whether it was a burner or what was in there. Q. You said they took a big piece of insulation out. You put your hands probably, I estimate, four, five feet apart, right? A. Yeah. Q- That means the piece of insulation came out whole. It was like a panel on the side or something? A. Yeah, it looked like pretty much formed, a formed piece. Q. Now, sir, when your counsel was asking you questions, you said that you recalled being present when a Rheem furnace was taken apart, and you said that there was some dust. Do you recall that? A. Yes. Q. Now, if you don t know the specific work that was being done, are you able to -3- [* 5] tell me the specific source of that dust? . . . A. Yeah, the insulation. Q. Where did the dust emanate from the insulation, if it came out in a big piece? A. They took it out and dropped it on the deck. Q. On the deck? A. On the floor. Q. Do you have - - as you sit here today, sir, do you have any information or personal knowledge that would enable you to testify that insulation was asbestoscontaining? . . . A. It s my belief that all insulation at that time was made of asbestos. Q. You re not aware of fiberglass being used at that time? A. I ve seen fiberglass insulation, and it wasn t fiberglass insulation. Defendant argues that Mr. Janits testimony is speculative because he could not recall a specific year or jobsite where he saw such work being performed, and because he had no personal knowledge that the insulation associated with such furnaces contained asbestos. Defendant further argues that Mr. Janits testimony is not credible as a matter of law because Rheem never manufactured six-foot tall furnaces and because the insulation associated with Rheem furnaces was asbestos-fi-ee and would not have been removed in connection with any repair or maintenance work. In support, Rheem submits the January 2,2013 affidavit of Richard Furhman, a former Rheem employee who fiom 1966 to 1999 held a variety of positions at the company, including lab technician, product development specialist, lab manager and project e ~ ~ g i n e eMr. Furhman r.~ averred that no Rheem furnace was six (6) feet or larger in height , that Rheem furnaces . . . 3 Mr. Furhman s affidavit is submitted with defendant s moving papers. -4- [* 6] did not utilize asbestos-containing form insulation as described by the plaintiff , and that [nlo maintenance or repair work performed on a Rheem hrnace would require the removal or disturbance of any insulation material. (Furhman Affidavit 77 16, 18, 19). However, there is no documentary evidence to support Rheem s assertions that it did not manufacture furnaces or asbestos-containinginsulation that match Mr. Janits description. In this regard, the defendant s position really goes to the weight to be accorded to Mr. Janits testimony at trial by the trier of fact and it is not a matter for this court to decide on a summary judgment motion. See Fervante v American Lung Ass n, 90 NY2d 623,63 1 (1997); Dollas v FR. Grace & Cu., 225 AD2d 319,321 (1st Dept 1996); Missan v Schoenfeld, 95 AD2d 198,207 (1st Dept 1983). It is noteworthy, however, that plaintiffs produced numerous documents which show that Rheem did in fact supply, require, or specify the use of asbestos-containing materials with at least some of its furnaces during the relevant time period. As an example, Rheem s April 1, 201 1 standard responses to plaintiffs Liability Interrogatories and Request for Production of Documents provide that until 1975 certain Rheem products, including hrnaces and boilers, incorporated a limited number of encapsulated chrysotile-containing components, manufactured by third party manufacturers. A Likewise, plaintiffs exhibit 4 is a copy of Mr. Furhman s August 15,2012 deposition testimony from an unrelated case venued in Los Angeles County wherein he identifies 1976 as the year he can say with confidence Rheem was no longer selling any furnaces that contained any amount of asbestos. Summary judgement is a drastic remedy that must not be granted if there is any doubt 4 Plaintiffs exhibit 3, p, 6 . 5 Plaintiffs exhibit 4, p. 76. -5- [* 7] about the existence of a triable issue of fact. Tvonloize v La d Amiante du Quebec, Ltee, 297 AD2d 528, 528-529 (1st Dept 2002). In an asbestos personal injury action, should the moving defendant make aprimafacie showing of entitlement to summaryjudgment as a matter of law, the plaintiff must then demonstrate that he was exposed to asbestos fibers released from the defendant s product. Cawein v Flintkote Co., 203 AD2d 105, 106 (1 st Dept 1994). It is sufficient for plaintiffs to show facts and conditions from which the defendant s liability may be reasonably inferred. Reid v Georgia Pacific Corp., 2 12 AD2d 462,463 (1 st Dept 1995). All reasonable inferences should be resolved in the plaintiffs favor. Daurnan Displays, Inc. v Masturzo, 168 AD2d 204,205 (1st Dept 1990). In light of the foregoing, it is hereby ORDERED that Rheem Manufacturing Company s motion for summaryjudgment is denied in its entirety. FILED This constitutes the decision and order of the court. SEP 0 9 2013 t COUNTY CLERK S OFFICE ,/ -6- NEW YORK

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