Treacy v Amchem Prods., Inc.

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Treacy v Amchem Prods., Inc. 2018 NY Slip Op 30354(U) February 21, 2018 Supreme Court, New York County Docket Number: 190352/2015 Judge: Lucy Billings 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. ,,.,,./ [*FILED: NEW YORK COUNTY CLERK 02/27/2018 12:19 PM 1] _,,./ INDEX NO. 190352/2015 __ NYSCEF DOC. NO. 135 RECEIVED NYSCEF: 02/27/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 46 . . ------~-~---~~--~~~~---~-~----~~~--~~~x· ANGELA M. TREACY and ANNA BERTOLOTTI, as Co-Administratrices for the Estate' of DANTE RICCOBONI, .. . Index-No. 190352/2015 Plaintiffs - against DECISION AND ORDER AMCHEM PRODUCTS, INC. , et al. , . Defendants· -------------------------~---~--------x LUCY BILLINGS, J;S.C.: I . BACKGROUND Defendant Goodyear Tire &, Rubber Company moves for summary judgment dismissing th_e ·complaint and_ cross-claims against Goodyear Tire & Rubber, C.P.L.R .. § 3412(b)., .C?n the ground that· Goodyear Tire & Rubber's tiles to which plaintiffs' decedent Riccoboni was exposed did not contairi asbestos. Upon its motion for summary judgment, Goodyear Tire & Rubber bears the burden to demonstrate that its breach of.a duty.as_claimed'by·plaintiffs_ did not cause or exacerbate Riccoboni's injuries. Katz v~ United -, Synagogue of Conservative_ Judaism, :1.35 A. D. 3d 458, 461 (1st Dep' t 2016); O'Conno_r·v. Aerco Intl.; Inc., 1.52 A.D.3d 841, 842 - (3d Dep't . - 2017). ' Po•inting to. a lack of evidence of causation does not satisfy this burden. Katz v. United Synagogue of Conservative Judaism,. 135 A.D.3d at 462;· O'Connor v. Aerco Intl., Inc.,· 152 A.D.3d at 842 .. riccobni.192 1 ~- 2 of 6 [*FILED: NEW YORK COUNTY CLERK 02/27/2018 12:19 PM 2] INDEX NO. 190352/2015 NYSCEF DOC. NO. 135 II. RECEIVED NYSCEF: 02/27/2018 GOODYEAR TIRE & RUBBER'S PRIMA FACIE DEFENSE The parties -do n~t ·9-ispute . ~-h~t. Riccoboni wor~ed in various locations where. Goodyear..,~Tire & Rtibb~-r' ~--t.11es._ we:re being installed. ·Goodyear Tire -& Rtibber- presents Riccoborti's deposition testimony describing Goodyear Tire & where Riccoboni worked as "12 by· 12 •i squares.· Broche Ex. B, at· 72. Rubbe~'s tiles Aff. · of Alexander His testimony that he did not know whether those tiles contained asbestos.and could not determine whether tiles contained asbestos by ·looking at them,- however I fails to demonstrate asbesto_s in the tiles-. - See Matter of New York County Asbestos Litig. ;. 52 A.D.3d 300,- 301 (1st Dep_'·t 2008). ·His belief that those tiles contained asbestos because he heard it from federal Occupational Safety and Health Administration personnel and in news accounts is inadmissible hearsay. Rubin v. Rtibin, 134 A.D.3d 579, 579 (1st Dep't 2015); Acevedo v. William Scotsman, Inc., 116 A.D.3d 416,. 417 (1st Dep't 2014); Rodriguez v. City of New York, .105 A.D,3d. 623;.624 (lst Dep't -2013); Peckman v. Mutual Life Ins. Co. of N.Y., 125' A.D.2d 244, 247 Dep't 1986). .(2009). See People v. Samandarov, 13 N.Y.3d 433, Goodyear Tile & (1st ~37 Rtibber also faults plaintiffs' failure to identify the specific addresses where Riccoboni worked, but does not indicate how this information would show the absence of tiles contq.ining asbestos at_ those sites. While Goodyear Tile & Rtibber's use ofRiccoboni's testimony amounts to no more than a showing_ of def i_ciencies in _piaintif f s' evidence of causation, as opposed to admissible evidence of an riccobni.192 2 3 of 6 [*FILED: NEW YORK COUNTY CLERK 02/27/2018 12:19 PM 3] NYSCEF DOC. NO. 135 INDEX NO. 190352/2015 RECEIVED NYSCEF: 02/27/2018 absence of causation, its verifieC:r answer.s to interrogatories may . ~ . "" .;, constitute that admissible.evidence demonstrating.an.absence of causation. see C.P.L.R. § i:OS.(U); Veneski v .. Oueens-Long .Island Med. Group, 285 ·A.D.2d·369, · 370 (1st Oe:p't 2902); Gibson v. St. • < .Luke's Roosevelt Hosp. Ctr., 267' A.D.2d 136, 137 (1st Dep't 1999) . Its . interrogatory answer that Goodyear Tire & Rubber· 0 manufactured only three brands Qf "tiles that contained asbestos t Black Back and Heavy Duty Bomogen6us (HDH), ·which were only 9 x 9 inches, and AquaShield, whicp .was never marketed, ·shows that. . ' Goodyear Tire &.Rubber did not manufacture or market tiles containing asbestos to which 'Riccoboni was exposed. , Although· this evidence may meet Goodyear Tire. & Rubber's initial burden, ·demonstrating its entitlement to ]udgmertt.as a.matter of law, Schiraldi v. U.S. Min. Prods.,·.l94·A.D.2d 482) 48~ (i~t Dep't 1993), its further answers to interrogatories rebut this evidence. III. FACTUAL ISSUES RAISED BY PLAINTIFFS In opposition, plaintiffs present Goodyear Tire & Rubber's verified fourth amended answers. to plaintiffs'. interrogatories. These answers admit that its HDH tiles also.were manufactured in squares of 12 x 12 inches, consistent with Riccoboni'-s description, and contained 5% asbestos until 1975. United Bank v. Cambridge Sporting 'Goods 'corp·.,·_ 41 N,Y.2d 254,'264. (1976); Lexington Park Realty LLC v. National Union Fire Ins; Co. of Pittsburgh, PA,· 120 A.D.3d 413, 414 (1st Dep't 2014). · Goodye.ar Tire & Rubber's further. evidence,. an aff'idavit by Edmund Lutz, . .. ' riccobni.192 ~ 3 4 of 6 [*FILED: NEW YORK COUNTY CLERK 02/27/2018 12:19 PM 4] INDEX NO. 190352/2015 . NYSCEF DOC. NO. 135 ,, ·, RECEIVED NYSCEF: 02/27/2018 its sales and marketing employee from 1952 to 1987, that its "prim?-ry flooring product was ·an all.-vinyl,, ti'le, "· Broche Aff.. Ex. D ~ ~; . fai;I.s to ·d.emonstrate: that its .·prosiuc_t·s to which Riccoboni was exposed in fact lac_ked: asbestos. Matter: of. New York City Asbestos Litig., 123 A.D.3d 498, 499 (1sf D~~'t '.2014) ~Matter of New York City Asbestos Litig., 122 A.D.3d at 52. See O'Connor v. Aerc6 -Intl., Inc., 152·A.D:3d at 84j . . Goodyear Tire I & , 'Rubber also present·s a report· dated November 21, . 2014, of testing conduc:ted ·on a Goodye.ar Tire· & Rubber HDH tile that revealed no asbestos, but·the report is uilsworn by the analyst who conducted the test, and the.director of the laboratory that received the sample tile fails .to lay a business record fbundation -for the -r~po~t. C.P.L.R. § ~51~ja); People v. Ramos, 13 N.Y.3d 914,. 915, (2010); 135 E. 57th St., ·LLC v. 57th St. Day Spa, LLC, r26 A.D.3d 471j 472 (1si Dep't 2015); P~ople v. Vargas, 99 A.D.3d 481, 48i (1st Dep't 2012); Taylor v. One Bryant Park, LLC, 94 A.D.3d 415, 415 (lst Dep't 2012). Testing of a single sample received in 2014, . in any event,. does not establish that no tiles.manufactured or· marketed.by Gb6?-year Tire & Rubber contaihed asbestos, particularly'dliring Ric~oboni's exposure to them ·from 1964 to 1979. Plaintiffs thus show a reasonable probability that· the Goodyear Tire & Rubber tiles to which Riccoboni wa,s exposed contained asbestos. Matter of New York Sity Asbestos Litig., 116 A.D.3d 545, 545 (1st Dep't 2014). See Hea:ley Rubber Co., 87 N.Y.2d 596, 601-602 (1996). riccobni.192 4 5 of 6 v. Firestone Tire & Since plaintiffs [*FILED: NEW YORK COUNTY CLERK 02/27/2018 12:19 PM 5] NYSCEF DOC. NO. 135 J • INDEX NO. 190352/2015 RECEIVED NYSCEF: 02/27/2018 ' raise these factual issues regarding.defendant.Goodyear Tire & Rubber Company's potent±al . l.iabili ty ,· ·the court .deni~s its . motion . . for· summary judgmeI?-:t· C.P.L .. R. § 3212 (b) ;·Matter of New York City Asbestos Litig., 116 A.D.3d at 545. See Matter of New York County AsbestosLitig;,:52 A.D.3d at 301.. DATED: February 21, 2018 LUCY BILLINGS, J.S.C. riccobni.192 5 6 of 6

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