Seabridge v Kelsey-Hayes Co.

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Seabridge v Kelsey-Hayes Co. 2017 NY Slip Op 33518(U) May 9, 2017 Supreme Court, Albany County Docket Number: Index No. 2015-901593 Judge: Richard T. Aulisi Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 901593/2015 FILED: ALBANY COUNTY CLERK 05/10/2017 03:39 PM NYSCEF DOC. NO. 239 RECEIVED NYSCEF: 05/10/2017 I r,I :1 I -; ' :, ,.l LU l : ! L. STATE OF NEW YORK SUPREME COURT II • . r-u· •./ i : i ' • D'' ( ; I ri. / • 0 V t ,, ••.• ._( ri COUNTY OF IA~BANf-OU\~ l 9.. ,_ -,,1· -, ..-. ~ ·-"--'-"" I ' TAMMY SEABRIDGE, as Executrix of the Estate of ROBERT W. MILES, deceased, and DELORA MILES, Individually, Plaintiffs, DECISION AND ORDER -vsIndex# 2015-901593 RJI #01-16-119546 KELSEY-HAYES COMPANY, et al., Defendants. The plaintiffs, Tammy Seabridge, as Executrix of the Estate of Robert Miles and Delora Miles, commenced the within action to recover damages for personal injuries and the wrongful death of Robert Miles, as a result of his exposure to various asbestos containing products and materials. The plaintiffs commenced this action on or about December 28, 2015, by filing a Summons and Complaint in the Albany County Clerk's Office. Issue was subsequently joined and discovery has been conducted pursuant to an expedite~ discovery schedule. I Robert Miles was diagnosed with malignant meso~helioma in November of 1015. Mr Miles died on November 23, 2015. He was approximate!} 74 years of age at the time of his death. The defendant, Kelsey-Hayes Company (hereinafter the defendant), has now made a motion for summary judgment dismissing the plaintiffs' qomplaint a.t).d all cross-claims asserted against it, pursuant to CPLR Rule 3212. The defendant s~eks summary judgment on the theory that the plaintiffs have been unable to identify or prove exposure to any asbestos-containing material or product attributable to the defendant. [* 1] 1 of 6 INDEX NO. 901593/2015 FILED: ALBANY COUNTY CLERK 05/10/2017 03:39 PM NYSCEF DOC. NO. 239 RECEIVED NYSCEF: 05/10/2017 _., _._, ,·-:·;·,' ... ~- ~ ', J '. ,",, .. • \' .:·:; ' .' r: '., .. : .:. , '•:.~ .- - ..... ' [* 2] ,•· 2 of 6 FILED: ALBANY COUNTY CLERK 05/10/2017 03:39 PM NYSCEF DOC. NO. 239 INDEX NO. 901593/2015 RECEIVED NYSCEF: 05/10/2017 It is alleged that the decedent, Robert Miles, was exp1sed to asbestos-containing materials while working as a parts person and parts manager for Fruehauf Corporation (Fruehauf) in I Albany, New York from 1956 to 1990. Mr. Miles passed ~way prior to being deposed. A col worker of his, Joe Hannon, was deposed and offered testi~ony as to Mr. Miles asbestos I I exposure. Mr. Hannon was employed by Fruehauf from 1967 to 1992. He testified that Robert I I Miles was exposed to various types of friction products at Fruehauf, and that these friction I products were supplied by Fruehaufs central distribution qenter in Westerville, Ohio. The defendant seeks summary judgment alleging that it was never adequately identified in this action. The defendant asserts that at no time during the discovery phase of this action has the name Kelsey-Hayes been mentioned. The defendant further argues that because neither Mr. Miles nor either of his co-workers identified Kelsey-Hayes, the proof is insufficient to impose liability upon it. A proponent of a summary judgment motion must ~ake a prima facie showing of i entitlement to judgment as a matter of law, tendering suf~cient evidence to demonstrate the absence of any material issue of fact. (Alvarez v. Prospect Hospital, 68 NY2d 320,324 [1986]). In the context of an asbestos case, the defendant must mJe a prima facie showing that its i product could not have contributed to the causation of plaintiffs injury. ( Comeau v. W.R. Grace & Co .. 216 AD2d 79, 80 [1 st Dept. 1995]); (Reid v. Georgia-Pacific Corporation, 212 AD2d 462 [ pt Dept. 1995]). The Court also notes that since this is a summary ju~gment motion, it must view the evidence in a light most favorable to the non-moving party, drawing all reasonable inferences in favor of the non-moving party. (Salemo v. Garlock, Inc,~ 212 Ad2d 463,464 [l5t Dept. 1995]); [* 3] 3 of 6 INDEX NO. 901593/2015 FILED: ALBANY COUNTY CLERK 05/10/2017 03:39 PM NYSCEF DOC. NO. 239 RECEIVED NYSCEF: 05/10/2017 -·~ .. .. ,: ... ,: ·.. : ~ :·.,' [* 4] 4 of 6 :·;:::, •': . ,/': .. FILED: ALBANY COUNTY CLERK 05/10/2017 03:39 PM ::7 -. NYSCEF DOC. NO. 239 INDEX NO. 901593/2015 RECEIVED NYSCEF: 05/10/2017 (Goffv. Clark, 302 AD2d 725 [3 rd Dept. 2003]). The defendant, Carlisle Industrial Brake & Friction, Ihc. (Carlisle), and the plaintiffs, have I I both opposed the defendant's summary judgment motion. !hey both claim that there is sufficient proof in the record to establish the identification of the defendant, Kelsey-Hayes. In particular they point to the defendant Kelsey-Hayes' discovery respoAses in which it states that Fruehauf I Corporation is "now known as the Kelsey-Hayes Companyr 1 The plaintiffs assert that the i testimony of Mr. Miles two co-workers, coupled with the 'rarious documents submitted in opposition to the summary judgment motion, clearly identify the moving defendant was not only a premises owner where Mr. Miles worked, but also a supplier/distributor of the asbestos containing friction materials. A plaintiff can successfully defeat a summary judgm~nt motion by raising a material issue ' / of fact and, once again, when this standard is applied to asbestos litigation, it has been held that plaintiff need not show the precise causes of his damages but only facts and conditions from ! which defendant's liability may be reasonably inferred. (!Joyd v. W.R. Grace & Co., 215 AD2d I 177 [l st Dept 1995]); also see (In Re New York City Asb~stos Litigation v. A.C. & S., 7 AD3rd 285 [1 st Dept. 2004]). (In Re Eighth Judicial District Asbbstos Litigation v. Amechem Products, I Inc., 32 AD3rd 1268 [4 th Dept. 2006]). I Based on the record before it, the Court finds that t~ere is a material issue of fact with ! regard to the defendant's liability and whether it contribufed to the causation of injury and subsequent death of the decedent, Robert Miles. 1 Exhibit [* 5] "E" Carlisle's opp. Papers 5 of 6 INDEX NO. 901593/2015 FILED: ALBANY COUNTY CLERK 05/10/2017 03:39 PM .~. - ,,.,1 NYSCEF DOC. NO. 239 ! RECEIVED NYSCEF: 05/10/2017 Defendant's motion for summary judgment is denied, jwithout costs. This writing shall constitute the Decision and Order Signed this qfl, day of YJ'/"i J I I this Court. 2017, at Johnstown, New York. HO~· I HARDT. AULISI Justice of the Supreme Court I I ENTER [* 6] 6 of 6

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