Matter of New York City Asbestos Litig.

Annotate this Case

Download PDF

Matter of New York City Asbestos Litig. 2015 NY Slip Op 31478(U) August 6, 2015 Supreme Court, New York County Docket Number: Judge: Peter H. Moulton 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: Part 50 ALL COUNTIES WITHIN THE CITY OF NEW YORK -----------------------------------------------------------------------------}( Index 190156/2014 IN RE NEW YORK CITY ASBESTOS LITIGATION -----------------------------------------------------------------------------}( JOSEPH GALASSO and RUTI-1 GALASSO Plai11tiffs, -againstALUMINUM COMPANY OF AMERICA (ALCOA),. el al., Defendant( s). -----------------------------------------------------------------------------)( PETER H. MOULTON, J.: Plaintiff Joseph A. Galasso ("plai11tiff) was diag11osed with 1nesotl1elioma in March of 2014. I-Iis disease, he clai111s, is con11ected to l1is exposure to asbestos-containing dust durit1g his en1ploy1ne11t as a carpenter fro1n approxi1nately 1952 until 1995. More specifically, Galasso claims that he was exposed to asbestos from vvork he did installing and cleani11g Llp debris from BF Goodrich ("defendant" or "Goodrich") floor tiles. Goodrich is alleged to have rnanufact11red, sold, and distributed asbestos-containing floor tiles used at various sites plaintiff worked at tl1rottghout the course ofl1is career. It is undisputed that up ttntil 1963, Goodricl1 sold both asbestos-contai11i11g and non-asbestos vi11yl tiles. Goodricl1 moves, p11rsua11t to CPLR § 3212, for summary judgment dis1nissing plaintii1"s complaint and all clain1s and cross-claims against it. Arguments Goodrich contends that plai11tiff has not shown tl1at l1e specifically came into contact with 1 [* 2] asbestos-co11taining floor tiles tl1at Goodrich 1nanufact1tred and sold. Indeed, Goodrich alleges that "[p]laintiffhas failed to provide m1y admissible testimony tl1at he was ever exposed to asbestos fro1n a tile t11m11ifactured by Goodricl1" (see Goodrich Me1norm1dun1 of Law at pg.6). Goodricl1 argues that at plaintiffs deposition, he equivocally testified that l1e merely "thought" tl1at its floor tiles had been removed at the Nassau Co1u1ty Jail, one of the sites where 11e worked (id). 1 Wl1en pressed for flll111er details, plaintiff could not recall tl1e year or decade i11 which he had supposedly viewed the tiles at tl1e jail (see Galasso Deposition, Ex. B, Plaintiffs Opposition, at pp 385-386). Additionally, defendant cites plaintiff's testi1no11y regardi11g the tile nlanufacturers that stood 011t during the course of his career as being "Kentile m1d An1tico" as furtl1er evidence of his mini1nal or non-exposure to Goodricl1 tiles (Goodrich Me1norandu1n of Law at pg. 2-4). Goodricl1 does not, however, dispute that it manufactured and sold vinyl asbestos-containing floor tiles during the relevant years of plaiI1tiffs alleged exposure. Defendant also argues that plaintiffs visual perceptio11 of"dust" pmticles that he came into contact with is insufficient to show that tl1ose pa1ticles were asbestos-containing (id. at pg. 6). Defendant makes this claiI11 while again not disputing that it 1nanufactured and sold vinyl asbestoscontaining floor tiles. Instead, defendant e1npl1asizes that plai11tiff ca11not prove that tl1e particles he came i11to contact with contaii1ed asbestos give11 that Goodrich nlade both asbestos m1d non-asbestos tloor tiles (.Yee Affidavit of Joa11 M. Taffi, ~ 4). As such, de1'e11dant submits that plaintiffs belief tl1at tl1e tiles 11e came i11to contact witl1 contained asbestos and were 1nanufactured by Goodricl1 is 1 The actual testimony that defendant relies on when stating that plaintiff"thought" that the floor tiles he had seen were Goodrich tiles is pg. 389 of plaintiffs deposition transcript, where plaintiff testified as follows: "Well, a lot of floors \Vere used in those days could have been I<entile or Goodrich or things like that." Plaintiff does not state the word "thought" that defendant ascribes to hin1. 2 [* 3] notl1ing 1nore than inad111issible co11jecture 111at fails to establish a ge11uine isslte of 1naterial fact. In opposition to defendant's motion, plaintiff subn1its that wl1en he was deposed, l1e testified that his asbestos exposure ste111med from installing and subsequently cleaning up Goodricl1 t1oor tile. Indeed, plaintiff described l1is work i11stalling Goodrich floor tile as a dusty process tl1at caused his exposltre: Q: A: Do you recall ever \Vorki11g at Pall Corp. in Sea Cliff? Yes. *** A: Tl1ey 1nanufacture filters and stuff. Q: And your job log it1dicates that yolt worked tl1ere 011 more tl1anA: Sure. Q: - one occasion. Over tl1e years also. A: Q: Is that correct sir? Yes. A: Q: Do you re1nember the work you were doing tl1ere 011 any of tl1ose occasions? A: Tl1at was basically the san1e tl1ing, that was alteration, it'd be floors, walls, ceilings, fire doors. Q: Do you recall what area of Pall Corp. you worked at? A: No. It's sort ofa factory building type. Q: Do you ren1e1nber your employer at that location? A: Could have been Lamparter or Phillips, I'm not sure. Or probably botl1 at times, different times. 2 *** Q: Do you believe you were exposed to asbestos from any of this work? A: Yeah. Q: J-Iow do you believe you were exposed? 2 Social Security records confi11n that Galasso \vorked at La1nparter fro1n 1960-1977 and Phillips fron1 1955-1956. 3 [* 4] A: By the dust created by installing, installation and clea11ing. You testified that you did floor work tl1ere, what kind of floor Q: work did you do? A: That was floor tile. Did you i11stall floor tile? Q: A: I think so. Do you believe t11at floor tile contained asbestos? Q: Yes. A: Who n1anufactured the floor tile at that location? Q: It was either Ke11tile or B.F. Goodricl1, 1'111 not sure. A: ''' A: Q: Well, it had tl1e same effect. What do yoti mean by that, sir? A: That you would create dust ifyot1're removing the tile 011 the floor tile. Q: And you're sayi11g ren1oval and I said replace, let's just go through that a second. Throug11otlt tl1e course of your career in the 50s, 60s, 70s and 80s, did you l1ave occasion to replace floor tile? A: Yes. J--Iow often would you say you had to do that? Q: Well, every job was different. A: Q: Okay. Maybe every 20 yem·s they change a floor. A: When t11ey l1ad to replace it completely? Q: "* A: Right. Q: What about ti1nes wl1erc things were dan1aged where yott had to just inake repairs, did you have to do that? A: There was son1e oftl1at bt1t not that mucl1. Q: Did you have to perfor111 that work? A: Certainly. Q: A11d tell me abot1t that work_, how would that be done? A: Saine way -well, i11 tl1at case probably use a Bernz-o-matic to loosen the tile and take it out. Q: Yott talked abot1t a Bernz-o-matic yesterday. A: Right. Q: I-low wot1ld aBernz-o-111atic be used 011 tl1e tile to loosen it up and take it out? 4 [* 5] A: To 11eat t11e floors, to u11bind tl1e glue. Q: And did you have to use any kind of tools to break up tl1e floor? *** A: Yes. Use a scraper. Q: And wl1a1 would you use tl1e scraper on? A: 011 the floors to scrape up the residue, \Vhatever is left tl1ere. Q: And you would have to remove the tiles before you removedA: Right. Q: -before you do that work on the residue; is that right? A: Right. Q: And the tiles, did they come up i11 one piece or were they broke11? A: No, usually t11ey break on you. Q: And whe11 tl1ey break on you, wl1at would l1appen? A: Well, it would create dust. Q: The dust was associated witl1 the tile? A: Yes. *** Q: And did yo11 breathe in that dust? A: Yes. Q: And do you believe you were exposed to asbestos additionally fro1n tile \Vork wl1icl1 yott had to replace and remove throughout the course ofyottr career? A: Yes. (see Galasso Deposition, Ex. B, Plai11tiff~s Opposition, at pp 606-608, 1459-1462 objections omitted). Based on this testimony, plai11tiff asserts that he identified working with Goodricl1 floor tiles, 1nentio11ed tl1at sucl1 work specifically involved installation and repairs that generated dust, and that the tiles he worked \vitl1 co11tained asbestos. PlaiI1tiff asserts that his exposure to st1cl1 floor tiles occurred throughout tl1e course of his career as a carpenter, iI1clt1di11g duri11g l1is work for Phillips and Lan1parter from 1955-1956 and 1960-1977, receptively. Tl1at period coincides witl1 Goodrich's 5 [* 6] purported i11volve111e11t within, and exit fron1, the floor tile business. Plaintiff further argues that defendant's corporate representative, Paul Bratenus ("Bratenus"), confirn1ed at 11is depositio11 that asbestos was an ingredient in both the aspl1alt a11d vinyl tile tl1at Goodrich n1a11ufactured, a11d that such tile was 1na11ufactt1red by Goodrich fron1 1946 until tl1e end of 1963 (see Bratenus Deposition, Ex. D, PlaintiiI's Opposition at pp 5-14). Plaintiff also states that Bratenus co11firn1ed tl1at Goodrich floor tile \Vas sold prirnarily "east of t11c Mississippi," and tl1at plai11tiff s entire fo1ty-plus year work as a carpenter was spent in New York and its surrounding areas (id.). Finally, plaintiff arg11es that Bratenus does not dispute that Goodrich asbestos-containing floor tile inay have bee11 re-sold on the 1narket and in residual use after Goodrich ceased n1anufacturi11g s11ch tile i11 1963. In light of this, plaintiff argues that sufficient evidence has bee11 proffered to raise triable issues of fact as to whether his asbestos exposure ste1nmed fron1 his work witl1 Goodricl1 floor tiles. Discussion CPLR § 3212 (b) provides, in relevant part: A inotion for s11n1111ary juclg1nent shall be supported by affidavit, b)' a copy of t11e pleadings and by otl1er available proof, sucl1 as depositions and written admissions. l'he affidavit shall be by a person having k11owledge of t11e facts; it shall recite all t11e 1naterial facts; a11d it shall show that tl1ere is 110 defense to the cause of action or that the cause of action or defense has no n1erit. The nlotion shall be grru1ted if, llpo11 all the papers ru1d proof sub111itted, tl1e ca11se of action or defe11se shall be established sufficiently to warrant tl1e co1rrt as a matter of law in directing judgment i11 favor of any party. Except as provided it1 sttbdivision (c) of this rule the nlotion shall be denied if a11y party shall show facts sufficie11t to require a trial of any issue of fact. Tl1us, a defendant 111oving for su1nn1ary judgtnent must first establisl1 its pri1na .facie entitlen1e11t to judgn1ent as a nlatter of law by demonstrati11g the absence ofn1atcrial issues of fact (see f/egct v Restani Constr. Corp., 18 NY3d 499 [2012]; Zuckermctn v City o,fNelv York, 49 NY2d 557, 562 [1980]). Therefore, sum1nary judg1nent in defendant's favor is denied wl1en defendant fails 6 [* 7] ··10 unequivocally establish tl1at its product could 1101 have contributed to the causation of plai11tiff s injury" (Reid v Georgia-Pacific Cmp., 212 AD2d 462, 463 [!st Dept. 1995]; Maller ('if}' Asbestos Litig. (Berensn1c1nn), of New York 122 AD3d 520 [l st Dept. 2014]). At1 affidavit from a corporate representative wl1ich is "conclusory ai1d without specific fact11al basis" does not meet the burden (Maller ofNew York City Asbestos Litig (DiSa/vo), 123 AD3d 498 (!st Dept. 2014]). By contrast, i11 Root v Eastern Refractories, Co. (13 AD3d 1187 [1st Dept. 2004]), ai1 affidavit from a corporate en1ployee wl10 worked for the defendant since 1948, which stated that the co111pany did i1ot supply any asbestos-containing products to Syracuse University d11ring tl1e relevant time, is sufficient to meet the burde11 of proof Tl1e First Departn1e11t has stated that where a defendant manufactures both an asbestos-free and asbestos-containi11g prod11ct, it inust eli1ninatc the possibility of a plaintiff's exposure to the asbestos-containing product to show the absence of material issues of fact (see Matter o,(Nev.1 York City Asbestos Litig. (Berensmann), 122 AD3d 520 (1st Dept. 2014]["Although the record shows tl10t defe11dant began to 1nanufacture and ship asbestos-free joint compound around the time that plaintiff purchased defendant's product, issues of fact exist as to whetl1er asbestos-free joint co1npo11nd was a\ ailable in Manhattan where plaintiff inade his purchase of the subject product"]; see also 1 Berkowitz v. A.C. & S, Inc., 288 AD2d 148 (Isl Dept. 200l](issue of fact raised by defendants' adn1ission that prod11cts someti1nes used asbestos]). It is only after tl1e burde11 of proof is 111et that plaintiff niust then show "facts and conditions fron1 whicl1 tl1e defendant's liability may be reasonably infen·ed" (Reid, 212 AD2d at 463, supra). Tl1e plai11tiff ca11not, l1owever, rely on conjecture or spcculatio11 (see Roin1esher v Colgate Scaffolding & Equip. Corp., 77 AD3d 425, 426 (!st Dept. 201 OJ). Nor can a plaintiff rely upon the affir1nation of counsel to till in a crl1cial gap regarding 11ow t11e plaintiff was exposed (see Marter 7 [* 8] o.fAsbestos Lifigafio11 (C'o1neau), 216 AD2d 79 [1st Dept. 1995] [counsel stated 1l1at tl1e deceased plait1ti1T inetal lat11er inust "necessarily [have] scraped . . W.R. Grace asbestos co11taining fireproofi11g ... in order to perfor1n his job"]). To defeat sum111ary judgment, a plaintiffs evide11ce 1nust create a reasonable inferc11ce that plaintiff was exposed to a specific defendant's product (see Comeau v. W.R. Grace & Co.-Conn), 216 AD2d 79 [!st Dept. 1995]). In addition, issues of credibility are for the jury (Cochra11e v 01-vens-Corning Fiberglass Corp., 219 AD2d 557, 559-60). Wl1ere "[t]he deposition testimony of a litigant is sufficient to raise an issue of fact so as to preclude the gra11t of sun1mary judgme11t dismissi11g the complaint ... [t]he assessn1e11t of tl1e value of a witnesses' testimony constitutes an issue for resolutio11 by the trier fact, and any appare11t discrepancy betwee11 the testh11ony and tl1e evidence of tl1e record goes only to the weight and not the admissibility of tl1e testin1ony" (Dallas v. Grace & Co., 225 AD2d 319, 321 [1st Dept. 1996] [i11ternal citatio11s on1itted}). Tl1is is partict1larly trtte it1 asbestos cases, like tl1at i11 Dallas, where tl1e testimony presented is ofte11 proffered by witnesses atte1npting to recall remote eve11ts that are years and perhaps even decades ren1oved fro111 the present. Furtl1ennore, it is wellsettled that in personal i11jury litigation, a plaintiff is not required to show the precise cause of his damages, blit only facts m1d conditio11s fro111 wl1ich a defendant's liability can be reasonably inferred (Reid, supra; Nlatter o.f Nell' York City Asbestos Litg. (Brookly11 Nav. Shipyard Cases), 188 AD2d 214, 225 [!st. Dept], qffd 82 NY2d 821 [1993]). Because assessn1ent of credibility is a jury functio11, summary judg1nentmust be de11ied even \Vl1ere plaintiffs testi111ony is equivocal. In Berens1nan11 v 3M C'o (122 AD3d 520 [1st Dept 2014}), tl1e First Depart1nent affi1n1ed the trial court's denial of defe11da11t's inotion for su1nn1ary jl1dgment where the plainti!T identified the inovi11g defe11dant's product by testifyi11g t11at "It rnigl1t've been" a brand that he used, tl1en testified "No I can't remen1ber" then testified "it's likely that I did, but 8 [* 9] that's the best I could do" and ulti1nately, t11at he did not even believe the product contained asbestos (Berensmann, 2013 NY Slip Op 33137 (U) [Sup Ct, New York County 2013]). The First Departn1e11t held that, except as to the wallboard product \Vl1ich "1mdisputedly" never contai11ed asbestos, sun1mary judgn1e11t was properly denied because tl1e evide11ce demonstrated that the 1noving defendant 1nanufactured joi11t compound contai11i11g asbestos at tl1e relevant times, and failed to "unequivocally establish that its product could not l1ave contributed to tl1e causation of plaintiffs injury" (Berensmann v 3M Co (122 AD3d 520, 521 [!st Dept 2014] [citing Reid, 212 AD2d at 463, supra]). Moreover, a defendant's contention that a plaintiffs description of the asbestos-containi11g product differs from the true description of that productn1erely raises issues of credibility for the jury (see Penn v Amchem Products. 85 AD3d 475 [1st Dept 20 I I]). Goodrich has failed to establish a pri111a facie case. 111 support of its motion, Goodrich concedes that it niade asbestos-containing floor tile u11til late 1963. The affidavit of Joan M. Taffi, a Goodrich Corporatio11 e1nployee, does not co11tain any specificity beyond the general clai1n t11at "[p]riorto 1964, B.F. Goodrich Co1npanyprod11ced and sold asbestos floor tile, as well as vinyl floor tile that contained no asbestos" (see Affidavit of Joan M. Tafti, if 4). Absent fron1 the affidavit are any i1un1erical figures witl1 respect to the quantity of asbestos and 11on-asbestos floor tiles that Goodricl11nan1ifactured prior to 1964. Tl1e Taffi affidavit does, however, refer to various corporate records from Goodrich, iI1cluding Brate11us' deposition testi1nony. Those records, which also i11clude san1ple specifications for no11-asbestos Goodrich tiles as \Vell as confir1nation that Goodrich exited the floor tile business in 1963, do little to advance Goodrich's arguments. Indeed, as previously 1nentioned, Bratenus' deposition testimony confirn1s that asbestos was an ingredient in both the asphalt and vi11yl tile that Goodrich inanufactured, and that such tile was man11factured from 1946 9 [* 10] u11til tl1e e11d of 1963 (see Bratenus Deposition, Ex. D, Plai11tiff s Opposition at pp 5-14). Bratenus' testi1nony also shows tl1at Goodrich manufactured and sold three types of flooring: vi11yl asbestos and non-asbestos tile, aspl1alt tile and rubber tile (id.). Admittedly, Goodrich states that botl1 its vinyl and asphalt tile co11tained asbestos (id.). In fact, only its rubber tile \Vas asbestos free. As such, two out of the tl1ree tile types that defenda11t manufactured contait1ed asbestos. 3 Defe11dant's concession \Vi th respect to tl1e existence of asbestos-containing floor tiles during fro1n 1946 u11til tl1e end of 1963 is particularly relevant give111l1at it coincides with plaintiffs alleged use of Goodrich products during l1is work for Phillips and Lamparter fro1n 1955-1956 and 1960-1977, receptively. Plainti11' furtl1er asserts tl1at 11is \Vork as a carpenter con1menced in 1952, and that he may 11ave bee11 exposed to asbestos-co11taining floor tiles fro1n as early as tl1at time. Beyond that, Goodrich fails to address its continuing operations after it exited the floor tile business i11 late 1963. 'fl1e Taffi affidavit profiered in support of Goodrich's motion does i1ot mention wl1at happened to Goodricl1's tile i11ve11tory after it ceased production. It is possible that wl1ile Goodrich did not 1nanufacture tile after 1963, it may l1ave sold its residual stock of tiles after tl1at period of time. Moreover, Goodrich's custo1ners - including hardware stores and wholesalers -n1ay l1ave co11tinued to sell Goodrich floor tile after 1963. As such, defendant 11as "failed to proffer any evide11ce that its asbestos products were not being used residually in the n1arketplace by various companies ... after it ceased manufacturing ai1d selling such prodttcts" (see Taylor v. A. C. & S., Inc., 306 AD2d 202, 202-03 [1st Dept. 2003][Appellate Divisio11 reversed grant of sum1nary jt1dgn1e11t in defendai1t's favor based on defendant's argu1ne11t that it had discontinued production of its 3 Additionally, beyond referencing his specific exposure to Goodrich floor tiles, plaintiff also identified that he may have seen Goodrich spackling and pipe covering during his \Vork at the Port Authority and Kings County 1-Iospital in 1955 and 1961, respectively (see Galasso Deposition, Ex. B, Plaintiffs Opposition, at pp 245, 251, 253, 255-56). 10 [* 11] asbestos-co11tai11ing products due to defendant's failure to account for whether or not its products could 11ave residually been used i11 the marketplace in t11e 1980s and 1990s after it ceased prodliction in 1977]; see also Berens1nann, 122 AD3d at 52 l [lst Dept. 2014][court 11eld tl1at although record sho\ved that defenda11t begm1 to i11anufacture and sl1ip asbestos-free product around the tin1e when plaintiff purchased defenda11t's product, issues of fact re1nai11ed as to whether asbestos-free product was available in Manhatta11 \Vhere plaintiffpurcl1ased product]). Even if detendc:mt had 1net its initial bt1rde11l1ere, plai11tiff s deposition testin1011yraises isslies of fact with respect to \Vhether his asbestos exposl1re ste1nn1ed from Goodrich floor tiles. Plai11tiff states t11at during his einployment as a cm-penter l1e personally worked with m1d arou11d floor tiles, installing and repairing tl1em at various job sites. I-le further recalled that during his work, sizeable an1ounts of dl1st were ge11erated. Plaintiff states that he regularly breathed iI1 tl1at dust. To the best of his recollection, plaintiff stated tl1at he believed tl1at the pri1nary rna11ufacturers of tl1e tile tl1at 11e used during the relevant years ofl1is e1nploy1nent were l(entile and Goodrich. Defe11dant does not dispute plaintiffs testi1nony regardi11g his possible exposure to Goodrich asbestos-containi11g tiles prior to the time when Goodrich stopped 1nanufacturing such tiles in 1963. Defendant also does not dispute that Goodricl1 floor tile was sold primarily ·'east ofthe Mississippi," and that plaintiff~s entire fortyMplus year work as a carpenter was spe11t in New York and its surrounding areas. In fact, defendant concedes tl1at Goodrich 1nanufacturcd asbestos-containing floor tile from 1946 until the e11d 1963, a period oftirne that overlaps with plaintiffs work during that relevant period of time beginning in 1952. Moreover, defendant does not dispute that Goodrich asbestos tiles could have remaiI1ed on the 1narket throt1gl1 sales and re-sales after it ceased manufacturing Sl1ch tiles in 1963. Goodricl1's argument tl1at plaintiffs deposition testin1ony is \Veak in light of the fact tl1at plaintiff idc11ti!ies other 1nanl1facturers of floor tile that l1e used and at times is non-co1nmittal (i.e. ll [* 12] "Well, a lot of the floors ... used in tl1osc days could have been Ke11tile or Goodrich or things like that") is u11persuasive. Tl1e lengths to \Vhich Goodricl1 disagrees with plaintiffs cl1aracterizations 1nerely raises credibility issues for the jury (see Berensman11 v 3M Co, 122 AD3d 520, supra; Penn v Amchen1 Products, 85 AD3d 475, suprct). Goodrich may take exception with plaintiffs recollection, however, as the no11-111oving patty on a motio11 for sun1mruy judgment, plaintiff is entitled to have his deposition testi1nony vie\ved in a light most favorable to 11im (see Vega, 18 NY3d at 503). Ultimately, his credibility will be evaluated by a jury (see Do/las, 225 AD2d at 321). Thus plaintiffs testi1nony tenders sufficient facts fro111 which defe11dant's liability could be reasonably infen·ed. It is hereby ORDERED that defe11dant's 1notio11 is denied. This constitutes the Decision and Order of the Court. Dated: August 6, 2015 /~jh H!'CPETER H. MOULTON J.S.C. 12 J.S.C.

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.