O'Sullivan v Borg-Warner Corp.

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O'Sullivan v Borg-Warner Corp. 2021 NY Slip Op 32870(U) December 29, 2021 Supreme Court, New York County Docket Number: Index No. 190180/2012 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 01/06/2022 09:01 AM NYSCEF DOC. NO. 182 INDEX NO. 190180/2012 RECEIVED NYSCEF: 01/06/2022 I I' SUPREME COURT OF THE STA1E OF NEW YORK NEW YORK COUNTY I PRESENT: PART HON. ADAM SILVERA 13 '' 1 Justice I:, .--------------------------------------------------------------- --------- ----X . i I ANTHONY O'SULLIVAN, AS ADMINISTRATOR FOR THE I' ESTATE OF PATRICK O'SULLIVAN, BRIGID O'SULLIVAN, I INDEX NO. MOTION DATE 190180/2012 07/01/2021 004 MOTION SEQ. NO. Plaintiff, - V - I:BORG-WARNER CORPORATION, CBS CORPORATION, i. F/K/A VIACOM INC.,CUMMINS ENGINE COMPANY, 11 INC.,DANA COMPANIES, LLC,FORD MOTOR COMPANY, CORPORATION, GENERAL ELECTRIC GOODYEAR CANADA, INC, HONDA OF AMERICA MFG., INC, HONEYWELL INTERNATIONAL, INC.,INGERSOLL-RAND COMPANY, INTERNATIONAL TRUCK AND ENGINE CORPORATION, MACK TRUCKS, INC, MAREMOUNT CORP, NISSAN NORTH AMERICA, j INC, OWENS-ILLINOIS, INC, PERKINS ENGINES, INC, , PNEUMO ABEX LLC,SUCCESSOR IN INTEREST TO : ABEX CORPORATION (ABEX), RAPID-AMERICAN ', CORPORATION, STANDARD MOTOR PRODUCTS, INC, !THE GOODYEAR TIRE AND RUBBER COMPANY, !TOYOTA MOTOR SALES, U.S.A., INC, TRANE U.S. _INC.,F/K/A AMERICAN STANDARD INC, U.S. RUBBER COMPANY (UNIROYAL), AMERICAN HONDA MOTOR CO., INC. (AHM), AMERICAN HONDA MOTOR CO INC , . (AHM), BORG WARNER MORSE TEC INC, CBS CORP j l F/K/ A WESTINGHOUSE ELECTRIC CORP, HONEYWELL INTERNATIONAL INC F/K/A ALLIED SIGNAL INC/BENDIX, I UNION CARBIDE CORP, 1 1 FREIGHTLINER I COMPANY, I I. DECISION + ORDER ON MOTION Ii i 1 I I I Defendant. I ·---------------------------------------------------------------- -------------- X Ithe following e-filed documents, listed by NYSCEF document number (Motion 004) 152, 153, 154, 155, 156,157,158,159,160,161,162,163,164,165,166,167,168,169,170,171,172 '1ere read on this motion to/for REARGUMENT/RECONSIDERATION I Upon the foregoing documents, it is ordered that plaintiff's motion to reargue is granted. I I: Here, plaintiff seeks to reargue a prior motion, made by defendant Nissan North America I; I i(rereinafter referred to as "defendant Nissan") for summary judgment to dismiss the complaint. Defendant Nissan opposes and plaintiff replies. 1 I 'I'. ,190180/2012 O'SULLIVAN, ANTHONY vs .. BORG-WARNER CORPORATION, Motion No. 004 1 of 5 Page 1 of 5 [*FILED: 2] NEW YORK COUNTY CLERK 01/06/2022 09:01 AM NYSCEF DOC. NO. 182 INDEX NO. 190180/2012 RECEIVED NYSCEF: 01/06/2022 I I I In a prior decision dated January 4, 2021 (hereinafter referred to as the "Prior Decision"), 1· the Court granted defendant Nissan's motion for summary judgment dismissing the complaint as ~gainst it on the grounds that defendant Nissan was distributing Datsun vehicles at the time of exposure and plaintiff did not explicitly identify Datsun vehicles, rather, plaintiff identified I ! • Nissan vehicles. CPLR 222 I (d)(2) pennits a party to move for leave to reargue a decision upon a 1 khowing that the court misapprehended the law in rendering its initial decision. "A motion for I leave to reargue pursuant to CPLR 2221 is addressed to the sound discretion of the court and ; I may be granted only upon a showing that the court overlooked or misapprehended the facts or the law or for some reason mistakenly arrived at its earlier decision." William P. Pahl Equip. I• Corp. v Kassis, 182 AD2d 22, 27 (I st Dep't 1992), appeal denied in part, dismissed in part 80 I NY2d I 005 ( 1992) (internal quotations omitted). Plaintiff argues that this Court misapprehended the law and the facts, as it was well I known to individuals such as plaintiff. who had specialized knowledge in auto-mechanics, that I • I. Nissan manufactured Datsun such that plaintiff's deposition testimony that he worked with I I I Nissan products from the 1970s to the 1990s contradicts defendant Nissan's arguments. In II bpposition, defendant Nissan avers that the Court did not misapprehend the law or facts in the I I ~rior Decision, and further argues that plaintiff raises new facts here which were not made in the i prior motion in contravention of CPLR 2221 (d). Defendant Nissan states that the only facts from I I. the prior motion that plaintiff refers to herein is plaintiffs deposition transcript. Preliminarily, I I, !rye Court notes that such argument fails as even if the Court were to only reconsider arguments, facts, and the law made by the parties during the prior motion, the Court did overlook and Lisapprehend the facts. Defendant Nissan further argues that the Court should not convert the i. \nstant motion to a motion to renew as plaintiff did not offer an excuse for the omission of ; ,90180/2012 O'SULLIVAN, ANTHONY vs. BORG-WARNER CORPORATION, , Motion No. 004 2 of 5 Page 2 of 5 [*FILED: 3] NEW YORK COUNTY CLERK 01/06/2022 09:01 AM NYSCEF DOC. NO. 182 INDEX NO. 190180/2012 RECEIVED NYSCEF: 01/06/2022 I :evidence in the prior motion. However, such argument also fails. The Appellate Division, First bepartment clearly and explicitly states that: I I. [a] motion for leave to renew is intended to bring to the court's attention new or additional facts which, although in existence at the time the original motion was made, were unknown to the movant and were, therefore, not brought to the courts' attention. This requirement, however, is a flexible one and the court, in its discretion, may also grant renewal, in the interest of justice, upon facts which were known to the movant at the time the original motion was made. Indeed, we have held that even if the vigorous requirements for renewal are not met, such relief may be properly granted so as not to defeat substantive fairness". I I. ;7/shman Constr. Corp. vCityofNew York, 280 AD2d 374, 376-377 (1 st Dep't 2001)(internal I citations and quotations omitted). CPLR§2221(e) permits a party to move for leave to renew a ~~cision to assert "new facts not offered on the prior motion that would change the prior I I cletermination or. .. demonstrate that there has been a change in the law that would change the I. ~rior determination". CPLR §2221 (e). Here, plaintiff has est;blished that the court I lnisapprehended the facts in its prior decision such that the instant motion is granted and the I Qourt wil I reconsider the prior motion for summary judgment. Turning to the substance of the prior motion, defendant Nissan argued that the complaint :nust be dismissed as to them as defendant Nissan established that Nissan brand cars did not l~ntribute to plaintiffs alleged asbestos exposure. Defendant Nissan further argued that Nissan I ! prand vehicles were not distributed by defendant Nissan North America until approximately three years prior to plaintiffs last date of exposure to such vehicles such that defendant Nissan ~uld not be responsible for the plaintiffs exposure to asbestos. ' Plaintiff correctly argues that the Court misapprehended the facts in the Prior Decision. i. s·ummary judgment is a drastic remedy and should only be granted if the moving party has I lbfficiently established that it is warranted as a matter of law. Alvarez v Prospect Hosp., 68 t; I NY2d 320, 324 ( 1986). "The proponent of a summary judgment motion must make a prima facie I :190180/2012 O'SULLIVAN, ANTHONY vs. BORG-WARNER CORPORATION, , Motion No. 004 3 of 5 Page 3of 5 [*FILED: 4] NEW YORK COUNTY CLERK 01/06/2022 09:01 AM NYSCEF DOC. NO. 182 INDEX NO. 190180/2012 RECEIVED NYSCEF: 01/06/2022 I I '.showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate ~ny material issues of fact from the case". Winegrad v New York University Medical Center, 64 I I NY2d 851,853 (1985). Additionally, summary judgment motions should be denied if the I 6'.pposing party presents admissible evidence establishing that there is a genuine issue of fact I ~emaining. See Zuckerman v City of New York, 49 NY2d 557,560 (1980). "In determining Lhether summary judgment is appropriate, the motion court should draw all reasonable I: I: inferences in favor of the nonmoving party and should not pass on issues of credibility." Garcia VJ C. Duggan, Inc., 180 AD2d 579, 580 ( I 't Dep't 1992), citing Dauman Displays, Inc. v I tfasturzo, 168 AD2d 204 ( I st Dep't 1990). The court's role is "issue-finding, rather than issueI ~~termination". Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 (1957) (internal I. i~otations omitted). As such, summary judgment is rarely granted in negligence actions unless there is no conflict at all in the evidence. Ugarriza v Schmieder, 46 NY2d 4 71, 475-476 (I 979). I i' Here, reviewing all the prior papers, the Court finds that defendant Nissan's heavy ieliance on the specific words "Nissan brand" vehicles lead the Court to misapprehend the facts l. of the case. This Court's Prior Decision misapprehended the facts in that the Prior Decision focused solely on Nissan branded vehicle. A careful review of plaintiff's deposition transcript l • f~veals that plaintiff specifically testified that he worked on every make of car and that he "just '' know[s he has] done brake jobs on Nissan's, and Ford's and everything. I don't recall any I. specific car". Original Notice of Motion dated, Exh. C, Depo. Tr. of Anthony O'Sullivan, p. I: 239. When asked what brand or manufacturer of clutches plaintiff removed from Nissan i y~hicles, plaintiff testified that "[i]t depends on the mileage on the car, if it had a lot of mileage, id be the original." Id. at p. 140-141. When asked about removing speci fie clutches from a I Nissan vehicle, plaintiff testified that he "guess[es] they were Nissan". Id. at 141. Plaintiff also ' I' I I 190180/2012 O'SULLIVAN, ANTHONY vs. BORG-WARNER CORPORATION, Motion No. 004 4 of 5 Page4 of 5 [*FILED: 5] NEW YORK COUNTY CLERK 01/06/2022 09:01 AM NYSCEF DOC. NO. 182 INDEX NO. 190180/2012 RECEIVED NYSCEF: 01/06/2022 ~~plicitly stated that he recalled using original clutches and brakes manufactured by Nissan. Id. i kt 302. Thus, plaintiff testified not only with regards to Nissan brand vehicles, but also to ~ifferent parts of the vehicles which were manufactured by Nissan. Thus, an issue of fact exists I f I to whether plaintiff was exposed to asbestos through products, either parts or vehicles, ~anufactured by defendant Nissan. As an issue of fact exists, summary judgment is precluded. I '.rihus, plaintiffs motion to reargue is granted and the original motion for summary judgment is I denied. 1 • I' Accordingly, it is i ORDERED that plaintiffs motion to reargue is granted and, upon reargument, the Court I ' I • iacates its prior decision, dated January 4, 2021; and it is further ! 1 ORDERED that the original motion for summary judgment seeking to dismiss this action is against defendant Nissan is denied in its entirety; and it is further I I ORDERED that, within thirty days of entry, plaintiffs shall serve a copy of this order lpon all parties, together with notice of entry. I, I I.' This constitutes the Decision/Order of the Court. ! I I \ 12/29/2021 i DATE I CASE DISPOSED I GRANTED I APPLICATION: SETTLE ORDER SUBMIT ORDER INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT CHECK ONE: • NON-FINAL DISPOSITION DENIED GRANTED IN PART I) )CHECK IF APPROPRIATE: I: O'SULLIVAN, ANTHONY vs. BORG-WARNER CORPORATION, I'190180/2012 Motion No. 004 5 of 5 ' • • OTHER REFERENCE Page 5 of 5

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