Camiolo v American Biltrite Inc.

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Camiolo v American Biltrite Inc. 2021 NY Slip Op 31852(U) May 19, 2021 Supreme Court, New York County Docket Number: 190199/2019 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 06/02/2021 03:00 PM NYSCEF DOC. NO. 62 I INDEX NO. 190199/2019 RECEIVED NYSCEF: 06/02/2021 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY I I PRESENT: HON. ADAM SILVERA PART IAS MOTION n Justice ----------------------·---------------------------------·--- . -X FRANCESCA CAMIOLO, AS EXECUTRIX FOR THE ESTATE OF PIETRO CAMIOLO, AND FRANCESCA CAMIOLO, INDIVIDUALLY, INDEX NO. MOTION DATE 190199/2019 11/23/2020 001 MOTION SEQ. NO. Plaintiff, - V - AMERICAN BILTRITE INC ,DOMCO PRODUCTS TEXAS, INC ,GOODYEAR CANADA, INC.,MANNINGTON MILLS, INC.,THE B.F GOODRICH COMPANY, (GOODRICH CORPORATION), THE GOODYEAR TIRE AND RUBBER COMPANY, UNION CARBIDE CORPORATION, DECISION + ORDER ON MOTION Defendant. ----------------------------------------------------------------------------X The following e-filed documents, listed by NYSCEF document number (Motion 001) 29, 30, 31, :Q, 33, 34; 35, 36, 37, 38, 39,40,41,42,43,44,45,46,47,48,49,50, 51, 52, 53, 54, 55,56, 57, 58, 59, 60,61 DISMISSAL were read on this motion to/for Before the Court is defendant The Goodyear Tire & Rubber Company's ("Goodyear") motion for summary judgment, pursuant to CPLR 3212, for a finding in favor of Goodyear on the grounds that said defendant has made a prima facie case demonstrating that the only product manufactured by defendant which matches plaintiff Pietro Camiolo' s ("Decedent") dcscri pt ion of the alleged asbestos product he worked with, never contained asbestos, and that there is no evidence that any Goodyear brand floor tile with which Decedent may have worked actually contained asbestos. Plaintiffs oppose the motion. Goodyear's motion contends that plaintiffs' counsel has failed ~o establish that Decedent w~s exposed to asbestos from materials manufactured by Goodyear. The case at issue arises from Decedent's fatal diagnosis of mesothelioma. Here, upon motion for summary judgment, 190199/2019 FRANCESCA CAMIOLO, AS vs. AMERICAN BILTRITE INC. Motion No. 001 1 of 5 Page 1 of 5 [*FILED: 2] NEW YORK COUNTY CLERK 06/02/2021 03:00 PM NYSCEF DOC. NO. 62 INDEX NO. 190199/2019 RECEIVED NYSCEF: 06/02/2021 Goodyear alleges that it did not manufacture the asbestos product that allegedly caused Decedent's illness. The proponent of a summary judgment motion must make a prima facie showing.of entitlement to judgment as a matter oflaw, 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]). The elements of a common-law negligence cause of action are a duty owed by the defendant to the plaintiff, a breach of that duty, and an injury proximately resulting therefrom (Jiminez v. Shahid, 83 A.D.3d 900 [2d Dept 2011 ]). The identification of a manufacturer or seller of an allegedly defective product must be proven to impose liability in tort (Hymowitz v. Eli Lilly & Co., 73 N.Y.2d 487, 504 [1989]). In an asbestos action, a defendant is entitled to summary judgment in the absence of proof that the plaintiff was exposed to asbestos from that defendant's products (Cawein v. Flintkote Co., 203 A.D.2d 105, 106 [1st Dep't 1994]). The plaintiff must allege facts and conditions from which the defendant's liability may be reasonably inferred; specifically, the plaintiff must provide sufficient evidence to show that he not only worked in the vicinity of the defendant's products, but also that he was exposed to asbestos as a result of the use of the defendant's product (Comeau v. W.R. Grace & Co. -Conn., 216 A.D.2d 79, 80 [1st Dep't 1995][citing Cawein, 203 A.D.2d at 105-06]). Goodyear notes that in the case at bar, product identification rests upon the testimony of Decedent's brother, who conceded that Decedent installed floor tiles with a solid colored bottom. Goodyear affirms that the only floor tile sold by Goodyear during the relevant period that matches the tile described by Decedent's brother is Deluxe-On-Grade tiles. Goodyear submits the affidavit of Joseph A. Kemmerling, who was employed by Goodyear from 1968 to 1979 as a 190199/2019 FRANCESCA CAMIOLO, AS vs. AMERICAN BILTRITE INC. Motion No. 001 2 of 5 Page 2 of 5 ... [*FILED: 3] NEW YORK COUNTY CLERK 06/02/2021 03:00 PM NYSCEF DOC. NO. 62 INDEX NO. 190199/2019 RECEIVED NYSCEF: 06/02/2021 development engineer and as section manager in the vinyl films and flooring division. Mr. Kemmerling affirms that neither the deluxe-on-grade tile nor homogeno!,ls-on-grade tile . contained asbestos (Mot, Exh Eat I 1- 12). Goodyear also attaches the deposition of Russel T. Holmes, who was employed by Goodyear from 1954 until 164 as a production supervisor and engineer for the Vinyl Products Division (Mot, Exh C). Mr. Holmes neither the deluxe-on--grade tile nor homogenous-on-grade tile contained asbestos (id. at 65-66). Defendant has demonstrated that the Goodyear products u_sed by Decedent did not contain asbestos and has made a prima facie showing of entitlement to judgment as a matter of law and the burden shifts to plaintiffs to raise an issue of fact. In opposition, plaintiff argues that contrary to defendant's claims, Goodyear has not met its initial burden of proof to put forward a prima facie case precluding material issues of fact that Decedent was exposed to asbestos from working with Goodyear asbestos-containing floor tiles. Plaintiff argues that defendant has failed to demonstrate unequivocally that its product did not contribute to Decedent's injury (Matter of New York City Asbestos Litig., 146 A.D.3d 700,700 [1st Dept 2017]; Matter of New York City Asbestos Litig., 123 A.D.3d 498,499 [I st Dept 2014]; Matter of New York City Asbestos Litig., 122 A.D.3d 520,521 [1st Dept 2014]). Plaintiffs note that because of inherent difficulties in showing injury from a specific defendant's product that occurred in a specific place and time years ago, plaintiff need only show facts and conditions from which a defendant's liability can be reasonably inferred (Reid v Georgia-Pacific. Corp., 212 AD2d 462, 463 [l st Dept 1995] citing Matter of New York City Asbestos Litig. [Brooklyn Nav. ShipyardCases], 188 A.D.2d 214,225 [1st Dept 1993) [finding that "(t]he plaintiff is not required to show the precise causes of his damages, but only to show facts and conditions from which defendant's liability may be reasonably inferred]). 190199/2019 FRANCESCA CAMIOLO, AS vs. AMERICAN BILTRITE INC. Motion No. 001 3 of 5 Page 3 of 5 [*FILED: 4] NEW YORK COUNTY CLERK 06/02/2021 03:00 PM NYSCEF DOC. NO. 62 INDEX NO. 190199/2019 RECEIVED NYSCEF: 06/02/2021 Plaintiff argues that the affidavit of Mr. Kemmerling does not meet the CPLR 3212(b) requirement that a motion for summary judgment be supported by personal knowledge of an affiant. The First Department has held that the C.P.L.R. 's "personal knowledge" requirement cannot be met where the affiant's knowledge is outside his personal experience and has been gained from "unnamed or unsworn employees or from unidentified and unproduced work · records" (Republic Nat. Bank ofNew York v. Luis Winston, Inc., I 07 A.D.2d 581, 582 [1st Dept. 1985]). Plaintiff notes that Mr. Kemmerling began working for Goodyears films and flooring division in 1969. Further plaintiff argues that the affidavit does not state that Mr. Kemmerling has read Decedent's deposition and that Mr. Kemmerling does not point to any source which provides a basis to the claim that Goodyear did not sell asb~stos-containing tiles after 1968. Plaintiff successfully demonstrates that Mr. Kemmerling did not have personal knowledge of the sales of asbestos-containing tiles prior to 1968. Plaintiff further argues that the affidavit of Mr. Holmes contradicts Mr. Kemmerling's opinions and fails to support Goodyear's claim that Goodyear tiles described by Decedent's brother could only have been asbestos-free. Plaintiff attaches Goodyears Fourth Amended Response to Plaintiffs Standard Interrogatories To All Defendants, December 1998 at 23-24, in which Goodyear described their heavy duty homogenous floor tiles as containing 5% asbestos (Aff in Op, Exh 4). Plaintiff notes that Mr. Holmes testified that Goodyear produced heavy duty homogenous floor tiles up until at least 1975 (Aff in Op, Exh 7 at 70-71 ). Additionally, plaintiff notes that although Decedent's brother testified that the tiles Decedent had worked with over the course of his career had a solid color bottom, that description was not specific to Goodyear floor tiles. Plaintiffs point to Decedent's brother's testimony that the floor tiles "were all different colors and different measurements" (Aff in Op, Exh 3 at 190199/2019 FRANCESCA CAMIOLO, AS vs. AMERICAN BILTRITE INC. Motion No. 001 4 of 5 Page4of 5 [*FILED: 5] NEW YORK COUNTY CLERK 06/02/2021 03:00 PM NYSCEF DOC. NO. 62 INDEX NO. 190199/2019 RECEIVED NYSCEF: 06/02/2021 175: 15). Plain.tiff has raised several issues of fact as to the testimony of defendant's employees and Decedent's brother regarding product identification warrants the denial of defendant's motion summary judgment. Accordingly, it is ORDERED that defendant's motion for summary judgment, pursuant to CPLR 3212, for .a finding in favor of defendant on the grounds that said defendant has made a prima facie case demonstrating lack of causation and to dismiss plaintiff's Complaint and all cross-claims against Goodyear is denied; and it is further ORDERED that within 30 days of entry, plaintiff shall serve a copy of this Decision/Order upon defendants with notice of entry. This Constitutes the Decision/Order of the Court. 5/19/2021 ADAM SILVERA, J.S.C. DATE CHECK ONE: APPLICATION: CHECK IF APPROPRIATE: ~ CASE DISPOSED GRANTED 0 NON-FINAL DISPOSITION DENIED GRANTED IN PART SETTLE ORDER SUBMIT ORDER INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT 190199/2019 FRANCESCA CAMIOLO, AS vs. AMERICAN BILTRITE INC. Motion No. 001 5 of 5 • • OTHER REFERENCE Page 5 of 5

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