Esposito v ABB, Inc.

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Esposito v ABB, Inc. 2021 NY Slip Op 31163(U) March 31, 2021 Supreme Court, New York County Docket Number: 190163/2019 Judge: Adam Silvera 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] NEW YORK COUNTY CLERK 04/08/2021 03:55 PM NYSCEF DOC. NO. 323 INDEX NO. 190163/2019 RECEIVED NYSCEF: 04/08/2021 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: PART HON. ADAM SILVERA Justice ---------------------------------------------------------------------------------X LORETTA ESPOSITO, AS EXECUTRIX OF THE ESTATE OF NICHOLAS J. ESPOSITO, JR., DECEASED, LORETTA ESPOSITO, INDEX NO. MOTION DATE MOTION SEQ. NO. IAS MOTION 13 190163/2019 12/7/2020 001 Plaintiff, -vABB, INC.,AIR & LIQUID SYSTEMS CORPORATION, ARMSTRONG INTERNATIONAL, INC.,AURORA PUMP COMPANY, BEAZER EAST INC.,BELDEN WIRE & CABLE COMPANY, LLC,BW/IP, INC.,CBS CORPORATION, CLARK-RELIANCE CORPORATION, CLEAVER-BROOKS INC.,CONVAL, INC.,COPES-VULCAN INC.,CRANE CO., INDIVIDUALLY AND AS SUCCESSOR TO AND DOING BUSINESS AS, CRANE ENVIRONMENTAL, INC.,CRANE PUMPS & SYSTEMS, INC.,CROSBY VALVE, LLC,EATON CORPORATION, ELLIOTT COMPANY, ERICSSON INC.,FLOWSERVE CORPORATION, FLOWSERVE US, INC.,FMC CORPORATION, GARDNER DENVER, INC.,GENERAL CABLE CORPORATION, GENERAL ELECTRIC COMPANY, GEROSA, INCORPORATED, GOULD ELECTRONICS, INC.,GOULDS PUMPS, LLC,GRAYBAR ELECTRIC COMPANY INC.,GRINNELL LLC,ITT LLC,INDIVIDUALLY, DOING BUSINESS AS AND SUCCESSOR TO ITT CORPORATION, BELL & GOSSETT COMPANY AND/OR BELL & GOSSETT DIVISION, FLOJET CORPORATION, THE HOFFMAN SPECIALTY MANUFACTURING COMPANY, ITT FLUID PRODUCTS CORPORATION, J.R. CLARKSON COMPANY, THE, LLC,JENKINS BROS., MINE SAFETY APPLIANCES COMPANY, LLC,MUNACO SEALING SOLUTIONS, INC.,NASH ENGINEERING COMPANY, THE, OKONITE COMPANY, INC.,THE, OLYMPIC GLOVE AND SAFETY CO., INC.,RSCC WIRE & CABLE LLC,SCHNEIDER ELECTRIC USA, INC.,SIEMENS INDUSTRY, INC.,SPIRAX SARCO, INC.,TRANE US, INC.,FORMERLY KNOWN AS AMERICAN STANDARD, INC.,INDIVIDUALLY, AS SUCCESSOR TO AND DOING BUSINESS AS, TREADWELL CORPORATION, TRIANGLE PWC, INC.,UNION CARBIDE CORPORATION, VELAN VALVE CORP., VIKING PUMP INC.,WARREN PUMPS LLC,WEILMCLAIN, WEIR VALVES & CONTROLS USA, INC, WILLIAM POWELL COMPANY, THE, YUBA HEAT TRANSFER LLC,ZY-TECH GLOBAL INDUSTRIES, INC.,JOHN DOE 1 THROUGH JOHN DOE 75, CUMMINS INC.,INDIVIDUALLY, AS SUCCESSOR TO AND DOING 190163/2019 ESPOSITO, JR., NICHOLAS J. vs. ABB, INC. Motion No. 001 1 of 5 DECISION + ORDER ON MOTION Page 1 of 5 [*FILED: 2] NEW YORK COUNTY CLERK 04/08/2021 03:55 PM NYSCEF DOC. NO. 323 INDEX NO. 190163/2019 RECEIVED NYSCEF: 04/08/2021 BUSINESS AS CUMMINS ENGINE COMPANY AND ONAN CORPORATION, Defendant. ---------------------------------------------------------------------------------X The following e-filed documents, listed by NYSCEF document number (Motion 001) 240, 241, 242, 243, 244, 245, 246, 247, 248, 249, 250, 251, 253, 258, 259, 260, 261, 262, 263, 264, 265, 266, 267, 268, 269, 270, 278 were read on this motion to/for SUMMARY JUDGMENT(AFTER JOINDER . Before the Court is defendant The William Powell Company’s (“Powell”) motion for summary judgment, pursuant to CPLR 3212, to dismiss plaintiff’s Complaint and all cross-claims, based on plaintiffs alleged failure to make a prima facie showing that plaintiff Nicholas J Esposito, Jr. (“Decedent”) was actually exposed to fibers released from a product sold, supplied and/or distributed by Powell. Plaintiffs oppose the motion. Powell’s motion contends that plaintiff has failed to establish that a Powell product was a substantial factor in causing plaintiff’s alleged injuries. The case at issue arises from Decedent’s May 2019 diagnosis of inoperable Stage IV lung cancer, that unfortunately led to his death on November 16, 2019, which plaintiffs allege, was caused by decedent’s exposure from asbestos containing valves manufactured by Powell. Decedent worked at Kips Bay Steam Generating Station as well as Astoria and Ravenswood Power Generating Stations where he testified to working with Powell asbestos containing valves. Decedent specifically identified Powell asbestos containing valves. Here, upon motion for summary judgment, Powell alleges that it did not cause plaintiffs’ injuries. “The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case” (Winegrad v New York University Medical Center, 64 NY2d 851, 853 [1985]). A defendant seeking summary judgment in a products liability case 190163/2019 ESPOSITO, JR., NICHOLAS J. vs. ABB, INC. Motion No. 001 2 of 5 Page 2 of 5 [*FILED: 3] NEW YORK COUNTY CLERK 04/08/2021 03:55 PM NYSCEF DOC. NO. 323 INDEX NO. 190163/2019 RECEIVED NYSCEF: 04/08/2021 involving asbestos must make a prima facie case that its product could not have contributed to the causation of the plaintiff’s injury (Reid v Georgia-Pacific Corp., 212 AD2d 462 [1st Dept 1995]). Here, Powell argues that Decedent unequivocally denied ever working with a Powell valve. Powell argues that Decedent “passively failed to identify Powell” as a source of his asbestos exposure because Decedent did not initially identify Powell as a manufacturer of valves he had worked with (Mot, ¶ 29; Exh E at 34-35; 78). Powell attempts to raise a feigned issue of fact by alleging that Decedent “actively denied exposure to Powell valves at least four (4) separate times during his discovery deposition” (Mot, ¶ 30). Upon examination of Decedent’s deposition, the Court finds that Decedent did, in fact, identify Powell valves. The four times in Decedent’s testimony that Powell refers to are merely points in Decedent’s deposition where he was asked if he remembered making statements regarding Powell valves earlier in his deposition (Mot, Exh H at 503; 577-579). Powell has attached the deposition of Decedent in which he clearly identifies Powell as a manufacturer of the valves that Decedent encountered as a mechanic at Kips Bay (Mot, Exh J at 26, ¶¶ 8-18; at 79, ¶¶ 9-11). Based upon the subject papers, Powell has failed to meet its burden to show that its product could not have contributed to the causation of plaintiff’s asbestos-related injuries (In re New York City Asbestos Litig.: DiSalvo v. A.O. Smith Water Prods., 123 AD3d 498, 499 [1st Dept 2014]) Notably, a defendant cannot satisfy this burden by merely pointing to gaps in a plaintiff's proof (Alvarez v. 21st Century Renovations Ltd., 66 A.D.3d 524, 525 [1st Dept 2009]). Here, the Court notes that Powell’s motion relies solely on gaps in plaintiff’s proof in attempt to meet its burden. Powell has made conclusory allegations that Decedent testified to not having worked 190163/2019 ESPOSITO, JR., NICHOLAS J. vs. ABB, INC. Motion No. 001 3 of 5 Page 3 of 5 [*FILED: 4] NEW YORK COUNTY CLERK 04/08/2021 03:55 PM NYSCEF DOC. NO. 323 INDEX NO. 190163/2019 RECEIVED NYSCEF: 04/08/2021 with Powell valves. Powell has provided no evidence that its valves, which Decedent testified were present at the various stations where Decedent worked, were not manufactured with asbestos. Further, Powell has provided no evidence that their product did not create visible asbestos dust which Decedent testified being exposed to (Mot, Exh E at 49-66). Powell contests causation, but does not provide a single report from any industrial hygienist, physician or medical expert, in support of its motion. Powell “bears the initial burden to establish that exposure to the asbestos from [its products] could not have contributed to [mesothelioma] or that [Decedent] was not exposed to levels of asbestos sufficient to contribute to the development of his disease” (Pogacnik v A.O. Smith Water Prods. Co., 60 Misc. 3d 1208[A], 2018 NY Slip Op 51026[U], *2 [Sup Ct, NY County 2018]). Powell has merely pointed to gaps in plaintiffs’ proof and has failed to provide evidence to prove that Decedent was not exposed to asbestos through one of Powell’s products. Thus, Powell has failed to meet its burden for summary judgment and Powell’s motion to dismiss plaintiffs’ Complaint and all cross-claims is denied. Accordingly, it is ORDERED that defendant’s motion for summary judgment, pursuant to CPLR 3212, for a finding in favor of Powell on the grounds that plaintiff has failed to put forth legally sufficient evidence to establish an issue of material fact as to whether any product manufactured, sold or distributed by Powell caused or contributed to plaintiff’s mesothelioma and to dismiss plaintiff’s Complaint and all cross-claims against Powell is denied; and it is further ORDERED that within 30 days of entry, plaintiffs shall serve a copy of this Decision/Order upon all parties with notice of entry. 190163/2019 ESPOSITO, JR., NICHOLAS J. vs. ABB, INC. Motion No. 001 4 of 5 Page 4 of 5 [*FILED: 5] NEW YORK COUNTY CLERK 04/08/2021 03:55 PM NYSCEF DOC. NO. 323 INDEX NO. 190163/2019 RECEIVED NYSCEF: 04/08/2021 This Constitutes the Decision/Order of the Court 3/31/2021 DATE CHECK ONE: $SIG$ ADAM SILVERA, J.S.C. CASE DISPOSED GRANTED X X DENIED NON-FINAL DISPOSITION GRANTED IN PART APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT 190163/2019 ESPOSITO, JR., NICHOLAS J. vs. ABB, INC. Motion No. 001 5 of 5 OTHER REFERENCE Page 5 of 5

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