Morales v ABB Lummus Crest

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Morales v ABB Lummus Crest 2014 NY Slip Op 33203(U) December 3, 2014 Sup Ct, NY County Docket Number: 190414/11 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. [* 1] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 30 ----------------------------------------------------------------------)( MACHELLE MONIQUE MORALES, as Administratrix for the Estate of MILTON L. FORDHAM, Index No. 190414/11 Motion Seq. 010 DECISION & ORDE.:IR Plaintiff, -againstABB LUMMUS CREST, et al., Defendants. --------------------··-------------------------------------------------X SHERRY KLElrN REITLER, J: In this asbestos personal injury action, defendant The William Powell Company ("Povrell" or "Defendant") moves pursuant to CPLR 3212 for summary judgment dismissing the complainL and all cross-claims asse1ied against it. 1 Defendant argues that there is no evidence to show that pla.::1tiffs' decedent Milton Fordham was exposed to asbestos from its products and that it cannot be held. liable for aftennarket asbestos-containing insulation manufactured by third parties. For the reasons se:: forth below, the motion is denied. Mr. Fordham commenced this action on October 19, 2011. Although he died before hiis deposition could be completed,2 Mr. Fordham had p1~eviously been deposed in co1mection w'.th a fonner co~worker's asbestos personal injury case,3 and among other things described how he was e:xposed to asbestos insulation associated with Powell pumps at several Long Island Lighting Company ("LILCO") power generating stations. 4 This is the second summary judgment motion brought by Powell in this case. The first w1s withdrawn without prejudice before it was fully submitted. 2 Plaintiffs exhibits C-E. 3 Stumrne v ABB Lummus Crest, et al., Index No. 106012/98 (Sup. Ct. NY. Co). See plaintiffs' exhibits' F-I. 4 Plaintiffs exhibit G, pp. 263-269. -1- [* 2] Defendant's first summary judgment motion, filed on or about May 3, 2013, sought to .Jiscredit plaintiff's testimony as a matter oflaw by showing that it never manufactured pumps or ex tee: al insulation. In support Defendant relied primarily on an affidavit from its corporate representative, Mr. William McClurc5 (McClure Affidavit, if 2 ): Powell is not, and never has been, the manufacturer of any type of pumps, asbestoscontaining or otherwise. Powell understands that plaintiff Milton Fordham testified th 3t he was exposed to asbestos from external insulation which was applied to centrifugal pum ;Js manufactured by Powell. I can state with ceiiainty that neither the pumps nor the insulation could have been manufactured by Powell because Powell never manufactured, sold, distJ.i.buted, or supplied such products. In response plaintiff disclosed a po1iio11 of an American Standard catalog which depicts Powe·' I. "Levei· Handle Oil Pumps" and an equipment manifest from one of the work sites identified by Mr. J1..xdham, LILCO's Far Rockaway Generating Station, which provides that Powell "Boiler Feedwater Pumpsn had been installed there. 6 Defendant subsequently withdrew its motion. Over a year later Defendant filed the instant motion grounded upon a second affidavi1 from Mr. McClure. 7 Therdn he avers that the Powell product depicted in the American Standard catal: g is "not a pump in the traditional sense of the word" but an "oiler, which was used on automobiles in th,~ early days of automobile travel." 8 Significantly, Mr. McClure's affidavit does not address the UL:'.O manifest. Defendant's moving papers also take issue with Mr. Fordham's alleged inability to describe the Powell products he encountered in significant detaiL Summary judgment is a drastic remedy that should be granted only if there are no trichle issues of fact. Vega v Restani Constr. Corp., 18 NY3d 499, 503 (2012). In deciding a summary judgment 5 See Affidavit of William J. McClure, sworn to March 27, 2013 ("McClure Affidavit"), submitted as plaintiffs exhibit J. 6 It is notable that the manifest identifies another piece of equipment as a Powell valve. 7 See Affidavit of William McClure, sworn to July 11, 2014 ("Supplemental Affidavit"), fl!bmitted as plaintiffs exhibit 0. 8 Id. ii 3. -2- [* 3] motion the comi's role is to detem1ine if any tiiable issues exist, not the melits of any such is~11es. Sillman v Twentieth Centwy-Fox Film C01p., 3 NY2d 395, 404 (1957). In doing so, the cour: views the evidence in the light most favorable to the nonmovirig pa1iy and gives the 1101m1oving pruiy tl '; benefit of all reasonable :inferences that can be drawn from the evidence. Angeles v Aron.sky, 105 AD:\d 486, 488-89 (1st Dept 2013). Here, Defondant has not unequivocally shown "that its product could not have contrib11ted to the causation of plaintiffs injury ... ". Reid v Georgia-Pacific Corp., 212 AD2d 462, 463 (1st Dt:pt 1995). TI1e court recognizes that it is difficult to prove a negative, but Defendant has not even met it; prima facie burden, by, for example, submitting Powell catalogs or literature depicting its line of pm ducts. As such the McClure affidavits are entirely conclusory. Defendant's argument that the LILC<) manifest is uncertified and therefore inadmissible is also unavailing. On a summary judgment motio111he court may consider evidence that otherwise may be inadmissible at trial. See Zimbler v Resnick 72r:'d St Assoc., 79 AD3d 620 (1st Dept 201 O); DiGiantomasso v City ofNew York, 55 AD3d 502 (1st Dept 2008); Oken v A. C. &S., 7 AD3d 285, 285 (1st Dept 2004); Wertheimer v New York Prop. Im. Unden11riting Ass 'n, 85 AD2d 540, 541 (1st Dept 1981). In this same vein, Mr. Fordham's aHeged failure to describe its products in detail at most presents a credibility issue for the trier of fac1. Dollas v WR. Grace & Co., 225 AD2d 319, 321 (I st Dept 1996) ("The deposition testimony of a litigrn1t is sufficient to raise an issue of fact so as to preclude the grru1t of summary judgment dismissin ~~.the complaint .... The assessment of the value of a witnesses' testimony constitutes an issue for resolution by the trier of fact, and any apparent discrepancy between the testimony and the evidence oL ~cord goes only to the weight and not the admissibility of the testimony."); see also Anderson v Liberty l.obby, Inc., 477 US 242, 255 (1986); Asabor v Archdiocese ofN.Y., 102 AD3d 524, 527 (1st Dept 2013); Alvarez v NY City Haus. Auth., 295 AD2d 225, 226 (1st Dept 2002). -3- [* 4] Defendant has also failed to establish,primafacie, that it had no duty to warn of the hazards associated with asbestos-containing aftennarket insulation applied to its products. As set forth in Matter of New York City Asbestos Litig. [Dummit], 2014 NY App. Div. LEXIS 4964 (1st Dept July~'. 2014), the "bare-metal" defense would only shield a manufacturer that has no "active role, interest, cr influence 1 in the types of products to be used in connection with its own product after it placed its produc1t into the stream of commerce". Id. at *33. But "where a manufacturer does have a sufficiently signifi:m1t role, interest, or influence in the type of component used with its product after it enters the stream :,:f commerce, it may be held strictly liable if that component causes injury to an end user of the rroduct." Id. at *29. There is nothing in this record (i.e., product catalogs, product designs, specificatici:r1s) that reveals Defendant's approach to asbestos components or show whether it specified and/or rec·:1mmended asbestos-containing insulation.9 By such failure Defendant has not met its burden for purpos~·s of this summary judgment motion, and the court need not consider the sufficiency of plaintiff's opposition. Reid, supra (citing Winegrad v New York Univ. Med Ctr., 64 NY2d 851, 852 [1985]); see aho Ayotte v Gervasio, 81NY2d1062, 1063 (1993). Accordingly, it is hereby ORDERED that the William Powell Company's motion for summary judgment is denied. This constitutes the decision and order of the comi. DATED:: SHERRY KLEIN HEITLER, J.S.C. 9 But see Peraica v A. 0. Smith Water Products Co., Index No. 190339111, 2012 N-Y Misc. LEXIS 4204 (Sup. Ct. NY Co. Aug. 27, 2012, Heitler, J.). In Peraica the court granted summar1 judgment to a defendant pump manufacturer that provided product literature showing that it directed its customers not to insulate their pump brackets or motors. -4-

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