Fischer v Aerco Intl., Inc.

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Fischer v Aerco Intl., Inc. 2013 NY Slip Op 32260(U) September 19, 2013 Supreme Court, New York County Docket Number: 190462/12 Judge: Sherry Klein 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. [*FILED: NEW YORK COUNTY CLERK 09/23/2013 1] INDEX NO. 190462/2012 NYSCEF DOC. NO. 94 RECEIVED NYSCEF: 09/23/2013 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HaN. SHERRY ."'2 PART .;)0 KLEI.N HEITLER Justice Index Number: 190462/2012 FISCHER, ARTHUR VS. i MOTION DATE _ _ __ AERCO INTERNATIONAL, INC SEQUENCE NUMBER: 002 MOnON SEQ. NO. () 0 SUMMARY JUDGMENT ------=-" --~ ft/'~s If --=-- _________ J _---'11- The following papers, numbered 1 to _ _ , were read on this motion toltor Notice of Motion/Order to Show Cause - Affidavits - Exhibits Answering Affidavits - 2.. ------------------------I No(s)._ _ _ __ Exhibits _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ Replying Affidavits _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ I No(s). _______ I No(s). _ _ _ __ Upon the foregoing papers, it is ordered that this motion is is decided in accordance with the memorandum decision dated w ..2 q. " /0 -(.3 I- en ~ -, o le w 0::: 0::: w u.. w 0::: )-.:.:. ..J~ 0 !L.C/) I- <I: U w ..J Z ~ Ul 3; 0::: C) w Z 0::: - en ~ - 0 W ..J ..J en <I: 0 U u.. Z w :I: I- o i= 0::: o 0 ::E u.. Dated: 7 _Cf_-_f__-_i3 --'=:::::~-:.d------' J.S.C. HON. SHERRY KLEIN HEITlER 1. CHECK ONE: ..................................................................... 2. CHECK AS APPROPRIATE: ........................... MOTION IS: 3. CHECK IF APPROPRIATE: ................................................ 0 0 0 GRANTED '- 0 SETTLE ORDER DDONOTPOST \. o NON-FINAL DISPOSITION CASE DISPOSED o GRANTED IN PART 0 OTHER o SUBMIT ORDER o FIDUCIARY APPOINTMENT o REFERENCE,/' DENIED ,,:?" /" ./ /.1" [* 2] SUPREME COURT OF THE STATE OFNEW YORK COUNTY OF NEW YORK: PART 30 ------------------------------------------------------------------------------)( GERTRUDE FISCHER, as Administratrix for the Estate of ARTHUR FISCHER, and GERTRUDE FISCHER, individually Index No. 190462112 Motion Seq. 002 DECISION & ORDER Plaintiffs, -againstAERCO INTERNATIONAL, INC., et al. Defendants. -----------------------------------------------------------------------------)( SHERRY KLEIN HEITLER, J.: In this asbestos personal injury action, defendant Nash Engineering Company ("Nas~") moves pursuant to CPLR 3212 for summary judgment dismissing the complaint and all crossclaims against it on the ground that plaintiffs have failed to establish that plaintiffs' decedent Arthur Fischer l was exposed to any asbestos-containing product manufactured, distributed, sold, or installed by Nash. For the reasons set forth below, the motion is granted. Arthur Fischer was diagnosed with mesothelioma on August 29, 2012. On October 4, 2012 Mr. Fischer and his wife Gertrude Fischer commenced this action to recover damages for personal injuries caused by his alleged exposure to asbestos. Mr. Fischer was deposed prior to his death on November 7 and 8, 2012 2 and testified that he worked as a civilian draftsman at the Brooklyn Navy Yard from 1950 until 1954. In this role, Mr. Fischer was responsible for designing the installation of radar systems and other electrical equipment aboard the U.S.S. Oriskany, U.S.S. Hornet, U.S.S. :V~p, U.S.S. Bennington, U.S.S. Lake Champlain andU.S.S. IMr. Fischer passed away from his illness on December 27,2012. 2Mr. Fischer's deposition transcripts are submitted collectively as defendant's exhibit C. 1 [* 3] Antietam. Mr. Fischer testified that the only asbestos exposure he had at the Brooklyn Navy Yard was when he was on the ships (Deposition, pp. 57-58); that his job, which was to measure and allocate the use of the spaces on the ships in relation to power" distribution, took him "all over the ships" (Deposition, pp. 56, 164-65, 76; 181); that pumps were every place on the ships (Deposition, p. 83); that while he was making his measurements, which involved "flat up, down and all sides", there was work taking place on the ships' pumps all of the time, with people continuously disassembling them and repairing them in his presence (Deposition, pp. 76-77, 8990), that all pumps have gaskets and that the use of asbestos was common in pump gaskets (Deposition, p. 80); and that this work continuously created dust in his presence which he breathed in. Although Mr. Fischer could not recall specifically his work on each ship and testified to such work in a general fashion, plaintiffs submit a "General Information Book" for the u.s.s. Hornet3 which shows that as of 1953 eight Nash pumps were present on that ship. In " this regard plaintiffs claim that at some point between 1950 and 1954 Mr. Fischer was exposed to asbestos from Nash pumps located aboard the U.S.S. Hornet. On this motion the defendant argues that it is entitled to summary judgment because Mr. Fischer never identified Nash as a manufacturer of the pumps he encountered despite being able to recall eleven other manufacturers of pumps he encountered throughout his career. Plainti ffs respond that the General Information Book for the U.S.S. Hornet which shows the presence of Nash pumps on that ship, taken together with Mr. Fischer's testimony that his work took him to all areas of a ship raises a material question of fact whether Mr. Fischer was exposed to asbestos 3Plaintiffs' exhibit "4". 2 [* 4] from Nash pumps. In response to plaintiffs' exhibit 4 defendant argues that nowhere does Mr. Fischer's testimony identify the ship on which he may have encountered a Nash pump in addition to which its Wayne County, Michigan interrogatory responses submitted by plaintiffs on this motion 4 show that Nash pumps did not contain asbestos gaskets until at least 1958, four years after Mr. Fischer left his position at the Brooklyn Navy Yard. 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 oflaw, and must tender sufficient evidence to demonstrate the absence of any material issue of fact. Zuckerman v City of New York, 49 NY2d 557, 562 (1980). In asbestos-related litigation, should the moving defendant make a prima facie showing of entitlement to judgment as a matter of law, the plaintiff must then demonstrate that there was actual exposure to asbestos fibers released from the defendant's product. Cawein v Flintkote Co., 203 AD2d 105, 106 (1st Dept 1994). In this regard, it is sufficient for the plaintiff to show facts and conditions from which the defendant's liability may be reasonably inferred. Reid v Georgia Pac(/ic Corp., 212 AD2d 462, 463 (1 st Dept 1995). The identity of a manufacturer of a defective product may be established by circumstantial evidence but such evidence cannot be speculative or conjectural. See Healey v Firestone Tire & Rubber Co., 87 NY2d 596, 601 (1996). The mere presence of the product at the plaintiffs worksite is not a sufficient nexus to create a reasonable iriference of exposure to the defendant's product. Diel v Flintkote Co., 204 AD2d 53 (1 st Dept 1994). ) In this case the defendant has facially established its entitlement to summary judgment insofar as it has shown that Mr. Fischer never identified a Nash product as a source of his 4Plaintiffs' exhibit "5", p. 10. 3 [* 5] exposure. In tum, plaintiffs have failed to meet their burden to raise a material issue of fact. In order to succeed on this motion, plaintiffs had to allege facts and conditions from which the defendant's liability may be reasonably inferred, i.e., that defendant's product was used in the vicinity where plaintiff worked and that plaintiff was exposed to asbestos fibers released from defendant's product. In this regard, although Nash pumps mayhave been present on' one of the six ships on which Mr. Fischer worked during his service at the Brooklyn Navy Yard from 1950 until 1954, the mere presence of such pumps on the U.S.S. Hornet in 1953 during Mr. Fischer's last year there, without more, is not a sufficient nexus to create a reasonable inference of exposure. There is nothing shown from which it can be reasonably inferred Nash pumps were placed in Mr. Fischer's zone of exposure. 'See Cawein, supra.; Die!, supra. Accordingly, it is hereby ORDERED that Nash Engineering Company's motion for summary judgment is granted, . I and this action and any cross-claims against Nash are severed and dismissed in their entirety; and it is further ORDERED that the action shall continue as against the remaining defendants; and it is further ORDERED that the Clerk is directed to enter judgment accordingly. This constitutes the decision and order of the Court. DATED: C;. f q . ( l~ ENTER: .~ SHERItY~R J.S.c. 4·

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