Tryon v A.O. Smith Water Prods. Co

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Tryon v A.O. Smith Water Prods. Co 2021 NY Slip Op 32242(U) November 5, 2021 Supreme Court, New York County Docket Number: Index No. 190368/2017 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. I' [* 1] INDEX NO. 190368/2017 NYSCEF DOC. NO. 211 RECEIVED NYSCEF: 11/09/2021 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY I. P,RESENT: l HON. ADAM SILVERA PART r I Justice -------------X I I ;BARBARA TRYON, AS EXECUTRIX FOR THE ESTATE I ;OF FERRIS 0. TRYON, AND BARBARA TRYON, I INDIVIDUALLY, I INDEX NO. MOTION DATE . 13 190368/2017 09/03/2020 MOTION SEQ. NO. _ _ _0_0_3_ _ Plaintiff, -v: AO. SMITH WATER PRODUCTS CO, AMCHEM I PRODUCTS, INC.,AURORA PUMP COMPANY, 'BURNHAM, LLC,CBS CORPORATION, F/K/A VIACOM 'INC.,CENTRAL HUDSON GAS & ELECTRIC, I ·CERTAINTEED CORPORATION, CLEAVER ~ROOKS 1 COMPANY, INC, CONSOLIDATED EDISON COMPANY, ! 'COURTER & COMPANY INCORPORATED, CRANE CO, 1 CROSBY VALVE LLC,FMC CORPORATION, FOSTER ; iWHEELER, L.L.C., GARDNER DENVER, INC, GENERAL 1 'ELECTRIC COMPANY, GOULDS PUMPS LLC,GRINNELL LLC,HESS CORPORATION, ITT LLC., JENKINS BROS, KEELER-DORR-OLIVER BOILER COMPANY, I MILWAUKEE VALVE COMPANY, NIAGRA MOHAWK 1 POWER CORP, NIBCO INC.,O'CONNOR ( 'CONSTRUCTORS, INC.,ORANGE & ROCKLAND UTILITIES, INC, OWENS-ILLINOIS, INC, PEERLESS I :INDUSTRIES, INC, PFIZER, INC. (PFIZER), RILEY · POWER INC, SUPERIOR BOILER WORKS, INC, TACO, 'INC, THE FAIRBANKS. COMPANY, TREADWELL 1 CORPORATION, TWC THE VALVE COMPANY, LLC,U.S. :RUBBER COMPANY {UNIROYAL), UNION CARBIDE ;coRPORATION, WARREN PUMPS, LLC,WATTS WATER TECHNOLOGIES, INC. F/K/A, WEIL-MCLAIN, A DIVISION :oF THE MARLEY-WYLAIN COMPANY, EASTERN REFRACTORIES COMPANY, INC., 1 I , DECISION + ORDER ON MOTION 1 1 I I Defendant. --------------------X 1The following e-filed documents, listed by NYSCEF document number {Motion 003) 173, 174, 175, 176, !177, 178, 179, 180, 181, 182, 183, 184,197,201,202,205 I. were read on this motion to/for JUDGMENT - SUMMARY 1 t· Upon the foregoing documents; it is ORDERED that defendants' motion for summary judgment to dismiss plaintiff's complaint is denied. Plaintiffs Ferris 0. Tryon and Barbara Tryon I I 190~=8/2!17 1 of 4 ~RYON, FERRIS O vs. A.O. SMITH WATER PRODUCTS co . Page 1 of 4 II NYSCEF DOC. ''NO. 211 [* 2] INDEX NO. 190368/2017 RECEIVED NYSCEF: 11/09/2021 I ~liege that Mr. Tryon was injured as a result of his exposure to asbestos from Foster Wheeler's I I, ducts. pro Here, defendant Foster Wheeler moves for summary judgment arguing that New Jersey \~w should be applied in this action. According to defendant Foster Wheeler, the New Jersey I l S~atute of Repose bars any alleged exposure attributable to Foster Wheeler products as a matter i' oflaw such that this action must be dismissed. I 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 I h1aterial issues of fact from the case". Winegrad v New York University Medical Center, 64 I I NY2d 851,853 (1985). Once such entitlement has been demonstrated by the moving party, the I l , burden shifts to the party opposing the motion to "demonstrate by admissible evidence the . . ' existence of a factual issue requiring a trial of the action or tender an acceptable excuse for his I: I failure ... to do [so]". Zuckerman v City of New York, 49 NY2d 557,560 (1980). Defendant I, . refers to Neumeier v Kuehner, 31 NY2d 121, 128 (1972), in which the Court of Appeals ~ddressed cases involving conflicts of choice of law between New York and foreign states and ~~lineated the three following principles: I. When the guest-passenger and the host-driver are domiciled in the same state, and the car.is there registered, the law of that state should control and determine the standard of care which the host owes to his guest. 2. When the driver's conduct occurred in the state of his domicile and that state does not cast him in liability for that conduct, he should not be held liable by reason of the fact that liability would be imposed upon him under the tort law of the state of the victim's domicile. Conversely, when the guest was injured in the state of his own domicile and its law permits recovery, the driver who has come into that state should not-in the absence of special circumstances-be permitted to interpose the law of his state as a defense. 3. In other situations, when the passenger and the driver are domiciled in different states, the rule is necessarily less categorical. Nonnally, the applicable rule of I ~90368/2017 TRYON, FERRIS O vs. A.O. SMITH WATER PRODUCTS , Motion No. 003 , 11 I I 2 of 4 co Page2of 4 [* 3] INDEX NO. 190368/2017 NYSCEF DOC. NO. 211 RECEIVED NYSCEF: 11/09/2021 '. \ l decision will be that of the state where the accident occurred but not if it can be shown that displacing that normally applicable rule will advance the relevant substantive law purposes without impairing the smooth working of the multi-state system or producing great uncertainty for litigants. (Cf. Restatement, 2d, Conflict of Laws, P.O.D., pt. II, §§ 146. 159 [later adopted and promulgated May 23, 1969].)" ! iI ; While not involving a motor vehicle accident, moving defendant argues that the first Minciple is applicable herein. Defendant notes that the vast majority of locations where plaintiff 1' ~orked were in New Jersey, that plaintiff is domiciled in New Jersey, that plaintiffs treating I. . abctors were located in New Jersey and that Foster Wheeler has its principal place of business I +hd operational headquarters in Hampton, New Jersey. Plaintiffs and defendant are both I! clbmiciled in New Jersey and defendant argues that the vast majority of events which form the Ii basis of plaintiffs' claims in this case occurred in New Jersey. In the state of New Jersey, the I slatute of Repose bars "all claims after ten years from the time of the furnishing of services, or l I ~ije performance of construction, irrespective of the date of injury''. Brown v. Jersey Central I! Power and Light Co., 163 N.J. Super. 179, 193 (App. Div. 1978). I! . l: In opposition, plaintiff argues that much of the work in question was conducted in New L ork which directly contradicts moving defendants' claims that such worked occurred mainly in 0 I I New Jersey. Moreover, there is a question of fact as to where plaintiff was exposed to asbestos. I: pere, plaintiffs exposure site has yet to be determined for the purposes_ of this case. As such, the ¢ourt finds that plaintiff has provided evidence that an issue of fact exists sufficient to preclude I ~~mmaryJ·udgment. Thus, defendant's motion is denied. I. I j· l Accordingly, it is l 1 I. ORDERED that defendant Foster Wheeler's motion for summary judgment to dismiss 1 · ·rr · 1s • d ente · d. p ·1 amu s comp 1amt I, ~90368/2017 TRYON, FERRIS O vs. A.O. SMITH WATER PRODUCTS CO ~otlon No. 003 · I 'l 3 of 4 Page 3 of 4 I' NYSCEF DOC. NO. 211 [* 4] INDEX NO. 190368/2017 RECEIVED NYSCEF: 11/09/2021 ORDERED that within 30 days of entry, plaintiff shall serve a copy of this decision/order upon defendant with notice of entry. '. ' This constitutes the Decision/Order of the Court. 11/5/2021 DATE I CHECK ONE: I' i APPLICATION: I CHECK IF APPROPRIATIE: ADAM SILVERA, J.S.C. ~ CASE DISPOSED GRANTIED 0 NON-FINAL DISPOSITION DENIED GRANTED IN PART SETTLE ORDER SUBMIT ORDER INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT : 190368/2017 TRYON, FERRIS O vs. A.O. SMITH WATER PRODUCTS CO No. 003 1 Motion 4 of 4 • • OTHER REFERENCE Page4 of 4

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