Cerutti v A.O. Smith Water Prods. Co.

[*1] Cerutti v A.O. Smith Water Prods. Co. 2018 NY Slip Op 51251(U) Decided on April 30, 2018 Supreme Court, New York County Billings, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 30, 2018
Supreme Court, New York County

David Cerutti and STEVEN CERUTTI for the Estate of ADRIANO CERUTTI and ANITA CERUTTI, Individually, Plaintiffs

against

A.O. Smith Water Products Co., et al., Defendants.



190009/2016



For Plaintiffs

Chris Romanelli Esq.

Weitz & Luxenberg

700 Broadway, New York, NY 10003

For Defendant Rockwell Automation, Inc.

Leigh A. DeCotiis Esq. and Joseph P. LaSala Esq.

McElroy, Deutsch, Mulvaney & Carpenter LLP

1300 Mount Kemble Avenue, Morristown, NJ 07962
Lucy Billings, J.

Plaintiffs sue to recover damages for the decedent Adriano Cerutti's exposure to asbestos from 1963 to 2001 at the Stella D'Oro Italian cookie factory in Bronx County where he worked as a mechanic. Defendant Rockwell Automation, Inc., as successor-in-interest to Allen-Bradley Company, LLC, moves for summary judgment dismissing the complaint and all cross-claims against Rockwell Automation, C.P.L.R. § 3212(b), based on the absence of evidence that any Allen-Bradley Company product contributed to the decedent's exposure. For the reasons explained below, the court denies Rockwell Automation's motion.

I. ROCKWELL AUTOMATION'S PRIMA FACIE DEFENSE

To establish entitlement to summary judgment, Rockwell Automation must demonstrate unequivocally that its product did not contribute to the decedent's injury. Matter of New York City Asbestos Litig., 146 AD3d 700, 700 (1st Dept 2017); Matter of New York City Asbestos Litig., 122 AD3d 520, 521 (1st Dep't 2014). See Matter of New York City Asbestos Litig., 123 AD3d 498, 499 (1st Dep't 2014). Rockwell Automation may not meet its burden by merely pointing to deficiencies in plaintiffs' evidence. Ricci v. A.O. Smith Water Prods. Co., 143 AD3d 516, 516 (1st Dep't 2016); Koulermos v. A.O. Smith Water Prods., 137 AD3d 575, 576 (1st Dep't 2016). Rockwell Automation meets its initial burden, however, by presenting the amended complaint and plaintiffs' answers to interrogatories that omit any exposure to asbestos from an Allen-Bradley Company product. Matter of New York City Asbestos Litig., 216 AD2d 79, 80 (1st Dep't 1995); Diel v. Flintkote Co., 204 AD2d 53, 54 (1st Dep't 1994); Schiraldi v. U.S. Min. Prods., 194 AD2d 482, 483 (1st Dep't 1993).

II. PLAINTIFFS' USE OF THE DEPOSITION OF CERUTTI'S CO-WORKER

In opposition, plaintiffs nonetheless present evidence demonstrating factual issues. Although Cerutti at his deposition testified only that he was exposed to asbestos dust from electrical panels to which electrical products were affixed and did not identify any Allen-Bradley Company product, he testified that he worked with an electrician whose name was transcribed as Julio Locasano. Cerutti died so soon after his deposition that he never reviewed his deposition for errors in transcription.

Giulio Loccisano, an electrician at the Stella D'Oro factory, testified at a deposition October 20, 2010, that Allen-Bradley Company electrical panels holding electrical equipment that contained asbestos were used at the factory. He identified the products as Allen-Bradley Company's by the name on the products. Rockwell Automation does not contend in this motion that Loccisano is not the electrician whom Cerutti named.

[T]he deposition of any person may be used by any party for any purpose against any other party who was present or represented at the taking of the deposition or who had the notice required under these rules, provided the court finds . . . that the witness is dead.

C.P.L.R. § 3117(a)(3)(i). Plaintiffs offer Loccisano's deposition taken in his estate's action on behalf of the plaintiff there. Rockwell Automation was a defendant in that action and was represented at that deposition. Knee v. A.W. Chesterton Co., 52 AD3d 355, 356 (1st Dep't 2008); State of New York v. Metz, 241 AD2d 192, 200 (1st Dep't 1998). See Rugova v. Davis, 112 AD3d 404, 404 (1st Dep't 2013); Matter of New York City Asbestos Litig., 21 AD3d 320, 320 (1st Dep't 2005); Bigelow v. Acands, Inc., 196 AD2d 436, 439 (1st Dep't 1993); Loschiavo v. DeBruyn, 6 AD3d 1113, 1114 (4th Dep't 2004).

Although Rockwell Automation's participation in that action and deposition places it within the parameters of C.P.L.R. § 3117(a)(3)(i); International Finance Corp. v. Carrera Holdings Inc., ___ AD3d ___, 2018 WL 1189087, at *2 (1st Dep't Mar. 8, 2018); Chang v. Botsacos, 92 AD3d 610, 610 (1st Dep't 2012); Kane v. Coundorous, 11 AD3d 304, 304 (1st Dep't 2004), Rockwell Automation nevertheless contends that in October 2010, long before plaintiffs commenced this action, Rockwell Automation perceived no reason to question Loccisano about whether he worked with Cerutti and therefore failed to do so. In the action by Loccisano's estate where Rockwell Automation also was a defendant, there was no issue about whether Loccisano and Cerutti worked together. Even if these circumstances demonstrate grounds to exclude the deposition at trial, plaintiffs may oppose Rockwell Automation's motion for summary judgment with evidence inadmissible at trial if the evidence is not the only basis for determining the motion and meets the requirements of C.P.L.R. § 3212(b). Rugova v. Davis, 112 AD3d at 404; Matter of New York City Asbestos Litig., 21 AD3d at 320; Matter of New York City Asbestos Litig., 7 AD3d 285, 285 (1st Dep't 2004).

C.P.L.R. § 3212(b) governs the allowable evidence in the context of a motion for summary judgment, as opposed to C.P.L.R. § 3117(a), which governs allowable deposition testimony at trial. State of New York v. Metz, 241 AD2d at 196. C.P.L.R. § 3212(b) specifies depositions, without qualification, as evidence to be considered upon a motion for summary judgment. See Knee v. A.W. Chesterton Co., 52 AD3d at 356; Dollas v. Grace & Co., 225 AD2d 319, 321 (1st Dep't 1996). They are no less admissible and perhaps more reliable than affidavits, as deponents receive an explicit warning that any misstatement may subject them to punishment for perjury and are subject to cross-examination, even if not by the same parties or on the same issues where the deposition is from an action other than where the summary judgment motion is made. State of New York v. Metz, 241 AD2d at 199-200. An affidavit, usually prepared by an attorney for the witness' signature, is not of the evidentiary value equivalent to a deposition, which elicits by question and answer the witness' own words, especially when adverse attorneys pose their unrehearsed questions. Id. at 200.

Rockwell Automation emphasizes its lack of notice that Loccisano's work with Cerutti was an issue and thus its lack of opportunity to cross-examine Loccisano on that subject, Matter of New York City Asbestos Litig., 7 AD3d at 285; Bigelow v. Acands, Inc., 196 AD2d at 439; [*2]Loschiavo v. DeBruyn, 6 AD3d at 1114, but an affidavit is a sworn statement from a witness unexamined altogether. Just as an unexamined affidavit is not ordinarily admissible at trial, neither is an unexamined deposition admissible except in limited circumstances. C.P.L.R. § 3117(a). E.g., People v. Settles, 46 NY2d 154, 166 (1978). The exclusion of Loccisano's deposition that Rockwell Automation seeks based on the prejudicial effect and inadmissibility of the testimony at trial is relief that Rockwell Automation may seek preliminary to or during the trial. Deonarine v. Montefiore Med. Ctr., 113 AD3d 496, 497 (1st Dep't 2014); State of New York v. Metz, 241 AD2d at 198.

Even had Rockwell Automation cross-examined Loccisano at his deposition by asking whether he worked with Cerutti, and Loccisano answered favorably to the examining party and denied working with Cerutti, in opposition to summary judgment Cerutti's contrary testimony still would raise a factual issue that Cerutti did work with Loccisano. By the same token, now, in support of summary judgment, Rockwell Automation may counter unexamined deposition testimony, here that Allen-Bradley Company electrical panels holding electrical equipment that contained asbestos were used at the Stella D'Oro factory, by the same means used to counter an unexamined affidavit. Rockwell Automation may present opposing affidavits and admissible documents, from witnesses or records concerning whether Allen-Bradley Company products were at the factory while Cerutti worked there, showing, for example, that Allen-Bradley Company never supplied its products to a cookie factory or in the vicinity of this factory. State of New York v. Metz, 241 AD2d at 199. Witnesses from both Allen-Bradley Company, Rockwell Automation's predecessor, and from Stella D'Oro are in a position to counter Loccisano's testimony on this issue. Id. at 200. Therefore the court considers Loccisano's deposition at this juncture, along with plaintiffs' other evidence in opposition to summary judgment, without prejudice to a motion by Rockwell Automation to exclude the deposition at trial. C.P.L.R. § 3212(b); Rugova v. Davis, 112 AD3d at 404; Knee v. A.W. Chesterton Co., 52 AD3d at 356; Matter of New York City Asbestos Litig., 21 AD3d at 320; Matter of New York City Asbestos Litig., 7 AD3d at 285; State of New York v. Metz, 241 AD2d at 199-200.

III. FURTHER OPPOSING EVIDENCE

Dennis Rygiewicz, an employee of Allen-Bradley Company from 1969 to 2004, testified at his deposition September 10, 2008, that he worked as a quality control inspector, as an electrical tester, as a test supervisor, and in the applications engineer department. Rygiewicz's testimony and Rockwell Automation's answers to interrogatories admit that, at least until 1985, Allen-Bradley Company's electrical products affixed to electrical panels contained asbestos, although the witnesses could not specify the precise frequency or extent of the asbestos content in particular products. This evidence establishes a reasonable likelihood that Cerutti was exposed to asbestos through Allen-Bradley Company's products, whether the panels themselves or the electrical products that the panels held. Tronlone v. Lac d'Amiante Du Quebec, 99 NY2d 647, 647 (2003); Knee v. A.W. Chesterton Co., 52 AD3d at 356; Petteys v. Georgia Pac. Corp., 214 AD2d 363, 363 (1st Dep't 1995). See Matter of New York County Asbestos Litig., 52 AD3d 300, 301 (1st Dep't 2008).

IV. CONCLUSION

For these reasons, based on the depositions of Cerutti, Loccisano, and Rygiewicz and the answers by defendant Rockwell Automation, Inc., to interrogatories, the court denies its motion for summary judgment. C.P.L.R. § 3212(b).

DATED: April 30, 2018

_____________________________

LUCY BILLINGS, J.S.C.