Corcione v Amchem Prods., Inc.

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Corcione v Amchem Prods., Inc. 2020 NY Slip Op 34687(U) September 30, 2020 Supreme Court, Westchester County Docket Number: Index No. 68086/2018 Judge: Sam D. Walker 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: 1] WESTCHESTER COUNTY CLERK 10/13/2020 03:14 PM NYSCEF DOC. NO. 102 INDEX NO. 68086/2018 RECEIVED NYSCEF: 10/13/2020 commence the the statutory statutory To commence time for appeals of right right time for appeals as of (CPLR 5513[a]), 5513[a]), you (CPLR you are advised to to serve serve a copy advised copy of this this order, order, with with notice notice of of entry, entry, upon upon all parties. parties. of SUPREME COURT NEW YORK SUPREME COURT OF THE STATE STATE OF NEW YORK COUNTY OF WESTCHESTER COUNTY WESTCHESTER PRESENT: HON. HON. SAM PRESENT: SAM D. WALKER, WALKER, J.S.C. J.S.C. -----------------------------------------------------------------------------x -----------------------------------------------------------------------------x LOUIS D. CORCIONE, CORCIONE, as Executor Executor for Estate of ANITA LOUIS for the Estate ANITA TADDEO, TADDEO, Plaintiffs, Plaintiffs, -against-against- DECISION & ORDER DECISION ORDER Index No. 68086/2018 Index 68086/2018 Motion Sequence Motion Sequence 4 AMCHEM PRODUCTS, PRODUCTS, INC., n/k/a rhone rhone poulencag poulencag AMCHEM company n/k/a bayer bayer cropscience company cropscience inc., CERTIFIED CERTIFIED CORPORATION, FULTON BOILER BOILER WORKS, CORPORATION, FULTON WORKS, INC., GENERAL ELECTRIC COMPANY, HOFFMAN-NEW GENERAL ELECTRIC COMPANY, HOFFMAN-NEW YORKER, INC., OWENS=ILLINOIS, OWENS=ILLINOIS, INC., PFIZER, PFIZER, INC. YORKER, (PFIZER), QUALITEX COMPANY, RUBBER (PFIZER), QUALITEX COMPANY, U.S. RUBBER COMPANY (UNIROYAL), UNION CARBIDE COMPANY (UNIROYAL), UNION CARBIDE CORPORATION, CORPORATION, Defendants. Defendants. ______________________________________________________ ------------------------x ------------------------------------------------------------------------------x The following following papers papers were were read on the motion motion (Sequence (Sequence #4) for order granted granted The for an order Hoffman-New Yorker, ("H NY") , summary Hoffman-New Yorker, Inc. ("HNY"), summary judgment judgment dismissing dismissing the complaint complaint and all cross-claims for such other further relief this Court Court deems deems just just and proper: cross-claims and for other and further relief this proper: Notice of Motion/Affirmation/Exhibits Motion/Affirmation/Exhibits A-L Notice Memorandum of Law in Support Support Memorandum Affirmation in Opposition/Exhibits Opposition/Exhibits 1-21 Affirmation Memorandum of Law in Reply/Exhibit Reply/Exhibit a Memorandum Factual and Procedural Procedural Background Background Factual The plaintiff-decedent, plaintiff-decedent, Anita ("decedentlTaddeo"), commenced The Anita Taddeo Taddeo ("decedent/Taddeo"), commenced this this action action October 29, 2018, 2018, seeking on October seeking damages damages for for alleged alleged exposure exposure to asbestos asbestos from from approximately 1938 1938 to approximately intermittently worked approximately approximately 1944, when when she intermittently worked with her father father tailor shop shop located located at Fort Fort Slocum, New York, and such press at a tailor Slocum, New such shop shop contained contained a press machine containing containing press press pads, which machine which she alleges alleges contained contained asbestos. asbestos. Taddeo Taddeo filed an amended complaint complaint on December December 3, 2018 Hoffman interposed interposed its answer. amended 2018 and Hoffman answer. Taddeo Taddeo 2019 and Louis Louis D. Corcione died on April April 20, 2019 Corcione was substituted substituted as executor executor for for the estate estate second amended amended complaint complaint was filed on October October 10, 2019. 2019. The The decedent decedent was was and a second 1 of 4 [*FILED: 2] WESTCHESTER COUNTY CLERK 10/13/2020 03:14 PM NYSCEF DOC. NO. 102 INDEX NO. 68086/2018 RECEIVED NYSCEF: 10/13/2020 deposed deposed on December December 3, 2018, 2018, prior prior to her death. death. The The parties parties completed completed discovery discovery and the plaintiff plaintiff filed filed the the note note of of issue. issue. HNY now now timely timely files files the the instant instant motion motion for for summary summary judgment, arguing that that it is not HNY judgment, arguing liable liable for for any any Hoffman Hoffman branded branded product, product, manufactured, manufactured, sold, supplied supplied or distributed distributed in North to February 1967. HNY the testimony North America, America, prior priorto February 15, 15,1967. HNY alternatively alternatively argues argues that thatthe testimony and evidence evidence proffered proffered against against HNY HNY is insufficient insufficient to maintain maintain an action action against against it, as there there has been been no evidence evidence proffered proffered to show show that that the the decedent decedent was was exposed exposed to asbestos asbestos from from a product product manufactured, manufactured, sold, sold, supplied, supplied, distributed, distributed, specified specified and/or and/or recommended recommended by HNY. In opposition, opposition, the the plaintiff's plaintiff's attorney attorney argues argues that that as a result result of of the the decedent's decedent's prolonged prolonged substantial substantial exposure exposure to asbestos, asbestos, she was was diagnosed diagnosed with mesothelioma mesothelioma in 2018, a signature signature illness illness for for which which asbestos asbestos exposure exposure is the the only only known known cause. cause. The The 2018, attorney contends contends that that HNY's HNY's motion motion must must be denied denied because because it failed failed to present present any any attorney admissible evidence, evidence, sufficient sufficient to prove prove ttiat that its products products could could not have have caused caused the the admissible decedent's illness, illness, thus thus failing failing to meet meet its prima prima facie facie burden. burden. decedent's The The plaintiff's plaintiff's attorney attorney argues argues that that HNY HNY has retained retained tort tort liabilities, liabilities, as per per the purchase agreement agreement and the the decedent decedent consistently consistently testified testified that that she she was was regularly regularly purchase exposed to asbestos asbestos when when workers workers changed changed the the pads pads on Hoffman Hoffman brand brand press press machines, machines, exposed as well well as when when she she swept swept up the resulting resulting debris. debris. He counters counters that that HNY HNY has has offered offered no admissible admissible evidence evidence to rebut rebut the the decedent's decedent's sworn sworn testimony, testimony, including including no affidavit affidavit based based on personal personal knowledge knowledge and attempts attempts to merely merely point point to gaps gaps in the the decedent's decedent's proof, proof, rather rather than than affirmatively affirmatively demonstrating demonstrating the the merit merit of of its defense. defense. In reply, HNY HNY argues argues that that the the plaintiff's plaintiff's opposition opposition does does not not create create an issue issue of of fact fact sufficient to overcome overcome HNY"s HNY"s prima prima facie facie showing. showing. HNY HNY asserts asserts that that the the decedent's decedent's sufficient testimony contains contains glaring glaring omissions, omissions, in that, that, she could could not not verify verify that that the the press press machinery machinery testimony was manufactured manufactured by Hoffman Hoffman or that that any alleged alleged pad encountered, encountered, was was asbestosasbestoswas containing. HNY HNY contends contends that that it is not required required to produce produce someone someone from from eighty-seven eighty-seven containing. years ago, with personal personal knowledge, knowledge, to refute refute the the plaintiff's plaintiff's allegations, allegations, but can rely on the the years most most credible credible evidence evidence available available regarding regarding the the decedent's decedent's exposure exposure claims, claims, which which is her own deposition deposition testimony testimony confirming confirming that that she could could only only guess guess as to the the manufacturer manufacturer of the the press press and had no basis basis to believe believe that that the the material material swept swept contained contained asbestos. asbestos. Discussion Discussion party seeking seeking summary summary judgment bears the the initial initial burden burden of of affirmatively affirmatively A party judgment bears demonstrating judgment as a matter demonstrating its entitlement entitlement to summary summary judgment matter of of law. (Winegrad (Winegrad v New New York Univ. Med. Ctr., Alvarez v Prospect Gtr., 64 NY2d NY2d 851,853 851,853 [1985]; [1985]; Alvarez Prospect Hospital, Hospital, 68 NY2d 320 [1986]). If a sufficient sufficient prima prima facie facie showing showing is made, made, the the burden burden then then shifts shifts to the [1986]). non-moving party party to come come forward forward with evidence evidence to demonstrate demonstrate the the existence existence of of a non-moving material issue issue of of fact fact requiring requiring a trial. (CPLR (CPLR 3212[b]); 3212[b]); see see also, Vermette Vermette v Kenworth Kenworth material 2 2 of 4 [*FILED: 3] WESTCHESTER COUNTY CLERK 10/13/2020 03:14 PM NYSCEF DOC. NO. 102 INDEX NO. 68086/2018 RECEIVED NYSCEF: 10/13/2020 viewed contentions are viewed Truck Company, Company, 68 NY2d NY2d 714, 717 717 [1986]). [1986]). The parties' competing competing contentions The parties' Truck Bank, N.A. Midland Bank, the motion. most favorable party opposing motion. (Marine (Marine Midland opposing the the party favorable to the light most the light in the 1990]). Dept [2d 610 AD2d 168 Co., v Dino & Artie's Automatic Transmission AD2d 610 Dept 1990]). Transmission Automatic Dino Artie's HNY first not liable liable for machinery manufactured manufactured by Hoffman Hoffman the machinery for the that it is not asserts that first asserts HNY purchase to agreement an into enter International Corporation ("HIC"), since HNY enter agreement purchase not did HNY since ("HIC"), International Corporation decedent's exposure the decedent's certain assets liabilities from after the exposure and from HIC until 1967, long after assets and liabilities certain other any other HNY did not assume liabilities for Hoffman branded branded pressing pressing machines machines or any for Hoffman the liabilities assume the HNY February to prior company, other any or HIC Hoffman banded products manufactured by any other company, prior February manufactured Hoffman banded products 1967. 15, 1967. It is a general general rule that that a corporation corporation which acquires the the assets assets of another another is not which acquires liable for predecessor (Schumacher (Schumacher v Richards Richards Shear Shear Co., Inc., 59 NY2d of its predecessor torts of the torts for the liable of tis torts of the torts for the liable held be 239, 244 [1983]). However, "[a] corporation may liable for may corporation However, 244 [1983]). there (2) liability, tort predecessor if (1) it expressly expressly or impliedly impliedly assumed assumed the the predecessor's predecessor's tort liability, there predecessor was the purchasing was consolidation or merger merger of of seller purchaser, (3) the purchasing corporation corporation was seller and purchaser, was a consolidation into entered is transaction the (4) a mere mere continuation of the selling corporation, or the transaction entered corporation, selling the of continuation that case this in fraudulently escape such such obligations obligations (Id.@ (ld. @ 245). There There is no evidence evidence this case that fraudulently to escape was no continuity there was of these apply. There merger, since since there continuity facto" merger, was no "de facto" There was theories apply. these theories any of operations business ordinary its cease of ownership of the asserts by HIC and did cease ordinary business operations not HIC of ownership of the asserts dissolve as soon soon as possible possible after after the the transaction. transaction. Further, Further, the 1967 1967 Purchase Purchase and dissolve Agreement between HIC and HNY HNY provided provided for assets and liabilities liabilities and did not specific assets for specific Agreement between provide that HNY would liability for Hoffman branded branded products, products, manufactured manufactured by for Hoffman assume liability would assume that HNY provide HIC. that Hoffman's either that establish either In addition, Hoffman's testimony did not establish decedent's testimony the decedent's addition, the between 1938 father between her father with her worked with products were used at the shop 1938 decedent worked where the decedent shop where were used products the decedent's zone of and 1944 1944 nor nor that products were placed in the of the decedent's exposure exposure (In re the zone were placed the products that the guessed decedent guessed The decedent New City Asbestos Dept 1995]). 1995]). The 719 [1st Dept AD2d 719 216 AD2d Litigation, 216 Asbestos Litigation, New York City being material being that material assert that basis to assert brand of the pads pads utilized utilized in the press and had no basis the press at the brand HNY and best at speculative was testimony swept contained asbestos. The decedent's testimony was speculative best HNY decedent's The swept contained asbestos. burden the shifting the burden of law, shifting demonstrating matter of judgment as a matter summary judgment entitlement to summary demonstrating its entitlement presented. evidence presented. the evidence with the fact with of fact issues of to the plaintiff, plaintiff, who who did not any issues establish any not establish foregoing, it is Accordingly, based on the the foregoing, Accordingly, based further judgment is granted ORDERED that HNY's motion motion for summary judgment granted and it is further for summary that HNY's ORDERED against HNY dismissed as against ORDERED HNY cross-claims are dismissed complaint and all cross-claims the complaint that the ORDERED that 3 3 of 4 [*FILED: 4] WESTCHESTER COUNTY CLERK 10/13/2020 03:14 PM NYSCEF DOC. NO. 102 INDEX NO. 68086/2018 RECEIVED NYSCEF: 10/13/2020 The The foregoing foregoing constitutes constitutes the the Opinion, Opinion, Decision Decision and Order Order of of the the Court. Court. Dated: Dated: White White Plains, Plains, New New York York September 30, 2020 2020 September HON. SAM SAM D. WALKER: WALKER, J.S.C. J.S.C. 4 4 of 4

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