Nankervis v A.O. Smith Water Prods. Co

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Nankervis v A.O. Smith Water Prods. Co 2023 NY Slip Op 34176(U) November 21, 2023 Supreme Court, New York County Docket Number: Index No. 190346/2017 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. INDEX NO. 190346/2017 NYSCEF DOC. NO. 690 RECEIVED NYSCEF: 11/21/2023 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: PART HON. ADAM SILVERA - - - ---------------------- Justice --------X KENNETH NANKERVIS, INDEX NO. 13 190346/2017 MOTION DATE N/A MOTION SEQ. NO. 007 Plaintiff, - V - A.O. SMITH WATER PRODUCTS CO, AMCHEM PRODUCTS, INC.,BURNHAM, LLC,BW/IP, INC. AND ITS WHOLLY OWNED SUBSIDIARIES, CERTAINTEED CORPORATION, CLEAVER BROOKS COMPANY, INC, COMPUDYNE CORPORATION, CONSOLIDATED EDISON COMPANY, CRANE CO, CRANE CO., ECR INTERNATIONAL, CORP., FLOWSERVE US, INC.,FMC CORPORATION, FORT KENT HOLDINGS, INC.,FOSTER WHEELER, L.L.C., FULTON BOILER WORKS, INC, GENERAL ELECTRIC COMPANY, GOULDS PUMPS LLC,ITT INDUSTRIES, INC.,ITT LLC., OWENS-ILLINOIS, INC, PEERLESS INDUSTRIES, INC, PFIZER, INC. (PFIZER), RHEEM MANUFACTURING COMPANY, SUPERIOR BOILER WORKS, INC.,THE FAIRBANKS COMPANY, U.S. RUBBER COMPANY (UNIROYAL), UNION CARBIDE CORPORATION, VIKING PUMP, INC, WEIL-MCLAIN, A DIVISION OF THE MARLEY-WYLAIN COMPANY, AIR & LIQUID SYSTEMS CORPORATION, AS SUCCESSOR BY MERGER TO BUFFALO PUMPS, INC.,AMERICAN BILTRITE INC.,AMERICAN HONDA MOTOR CO., INC. (AHM), ARVINMERITOR, INC.,INDIVIDUALLY AND AS SUCCESSOR TO ROCKWELL AUTOMOTIVE, AURORA PUMP COMPANY, BEAZER EAST, INC.,F/K/A KOPPERS COMPANY INC.,BIRD INCORPORATED, BLACK & DECKER CORPORATION, BLACK & DECKER US, INC.,BRIGGS & STRATTON CORP., CAMPBELL HASUFELD, LLC,CARRIER CORPORATION, CBS CORPORATION, F/K/A VIACOM INC.,SUCCESSR BY MERGER TO CBS CORPORATION, F/K/A WESTINGHOUSE ELECTRIC CORPORATION, COOPER CROUSE-HINDS, CROSBY VALVE LLC,CUMMINS, INC.,DEWALT INDUSTRIAL TOOL CO., EMERSON ELECTRIC CO., FORD MOTOR COMPANY, GARDNER DENVER, INC.,GENUINE PARTS COMPANY, TRADING AS NAPA AUTO PARTS, GRINNELL LLC., HARLEY- DAVIDSON INC.,HARLEY- DAVIDSON MOTOR CO., INC. F/K/A HARLEY- DAVIDSON MOTOR COMPANY SALES INC.,HARLEY- DAVIDSON MOTOR COMPANY OPERATIONS INC.,HONEYWELL INTERNATIONAL, INC.,F/K/A ALLIED SIGNAL, INC./BENDIX, KAISER GYPSUM COMPANY, 190346/2017 NANKERVIS, KENNETH vs. A.O. SMITH WATER PRODUCTS CO Motion No. 007 [* 1] 1 of 5 DECISION+ ORDER ON MOTION Page 1 of 5 INDEX NO. 190346/2017 NYSCEF DOC. NO. 690 RECEIVED NYSCEF: 11/21/2023 INC.,KARNAK CORPORATION, LENNOX INDUSTRIES, INC.,LEVITON MANUFACTURING CO. INC.,MANNINGTON MILLS, INC.,MARMON HOLDINGS, INC.,PERKINS ENGINES, INC.,PNEUMO ABEX LLC,SUCCESSOR IN INTEREST TO ABEX CORPORATION (ABEX), R.W. BECKETT CORPORATION, RILEY POWER INC.,SCHNEIDER ELECTRIC USA, INC. FORMERLY KNOWN AS SQUARE D COMPANY, SIEMENS INDUSTRY, INC.,SUCCESSOR IN INTEREST TO SIEMENS ENERGY & AUTOMATION, INC.,SLANT/FIN CORPORATION, STANLEY BLACK & DECKER, INC.,TDY INDUSTRIES, INC. F/K/A TELEDYNE INDUSTRIES, INC, INDIVIDUALLY AND AS SUCCESSOR TO FARRIS ENGINEERING, TRIUMPH MOTOCYCLES AMERICA LIMITED, ZY-TECH GLOBAL INDUSTRIES, INC., Defendant. -----------·-----------------X The following e-filed documents, listed by NYSCEF document number (Motion 007) 404, 405, 406, 407, 408,409,410,417,512,514,562,563,564,565,566,567,568,569,570,571,572,580,581,582,583 were read on this motion to/for JUDGMENT - SUMMARY Upon the foregoing documents, it is ordered that the instant motion for summary judgment seeking dismissal of this action, pursuant to CPLR §3212, is decided in accordance with the decision below. Here, defendant Campbell Hausfeld, LLC ("Campbell") files a motion for summary judgment seeking to dismiss this action on the basis that no Campbell Hausfeld product has been identified in relation to plaintiff Kenneth Nankervis' ("Mr. Nankervis") lung cancer. See Memorandum of Law in Support of Campbell Hausfeld, LLC's Motion for Summary Judgment, p. 2. Defendant Campbell highlights that plaintiff has a long history of cigarette use, and that plaintiff cannot prove he was exposed to asbestos from his work replacing gaskets on air compressors manufactured by moving defendant. See id. Defendant Campbell additionally notes that plaintiffs description of gaskets replaced in defendant's air compressors would not have contained asbestos. See id. at p. 4. 190346/2017 NANKERVIS, KENNETH vs. A.O. SMITH WATER PRODUCTS CO Motion No. 007 [* 2] 2 of 5 Page 2 of 5 INDEX NO. 190346/2017 NYSCEF DOC. NO. 690 RECEIVED NYSCEF: 11/21/2023 Plaintiff opposes, highlighting defendant Campbell's manufacturing of air compressors that utilized asbestos-containing gaskets through the time period of Mr. Nankervis' work as a roofer and matching his description. See Affirmation in Opposition to Defendant Campbell Hausfeld, LLC's Motion for Summary Judgment, p. 5. Defendant Campbell's reply references an entirely different plaintiff from the instant matter and, thus, is irrelevant herein. See Memorandum of Law in Further Support of CH Transition Company, LLC f/k/a Campbell Hausfeld, LLC's Motion for Summary Judgment, p. 2 ("Plaintiff Francesco Sparano"). The Court notes that summary judgment is a drastic remedy and should only be granted if the moving party has sufficiently established that it is warranted as a matter of law. See Alvarez v Prospect Hosp., 68 NY2d 320, 324 (1986). "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). Despite the sufficiency of the opposing papers, the failure to make such a showing requires denial of the motion. See id at 853. Additionally, summary judgment motions should be denied if the opposing party presents admissible evidence establishing that there is a genuine issue of fact remaining. See Zuckerman v City of New York, 49 NY2d 557, 560 (1980). "In determining whether summary judgment is appropriate, the motion court should draw all reasonable inferences in favor of the nonmoving party and should not pass on issues of credibility." Garcia v JC. Duggan, Inc., 180 AD2d 579, 580 (1st Dep't 1992), citing Dauman Displays, Inc. v Masturzo, 168 AD2d 204 (1s t Dep't 1990). The court's role is "issue-finding, rather than issue-determination". Sillman v Twentieth Century- Fox Film Corp., 3 NY2d 395, 404 (1957) (internal quotations omitted). As such, summary judgment is rarely granted in negligence actions unless there is no conflict at all in the evidence. 190346/2017 NANKERVIS, KENNETH vs. A.O. SMITH WATER PRODUCTS CO Motion No. 007 [* 3] 3 of 5 Page 3 of 5 INDEX NO. 190346/2017 NYSCEF DOC. NO. 690 RECEIVED NYSCEF: 11/21/2023 See Ugarriza v Schmieder, 46 NY2d 471, 475-476 (1979). Furthermore, the Appellate Division, First Department has held that on a motion for summary judgment, it is moving defendant's burden "to unequivocally establish that its product could not have contributed to the causation of plaintiffs injury". Reidv Georgia-Pacific Corp., 212 AD2d 462,463 (Pt Dep't 1995). The appropriate standard at summary judgment for moving defendant Campbell can be found in Dyer v Amchem Products Inc., 207 AD3d 408, 409 (1st Dep't 2022). In Dyer, defendants were granted summary judgment not by "simply argu[ing] that plaintiff could not affirmatively prove causation" but by "affirmatively prov[ing], as a matter of law, that there was no causation." Id. Moving defendant's arguments focus entirely on plaintiffs testimony as opposed to affirmatively establishing that their products could not have causally contributed to plaintiffs lung cancer. As conflicting evidence has been presented herein with regards to defendant Campbell's manufacturing of air compressors utilizing asbestos-containing parts during the period of Mr. Nankervis' exposure, issues of fact exist to preclude summary judgment. Moreover, defendant Campbell has wholly failed to meet its burden to establish that its products could not have been the cause for Mr. Nankervis' illness. See Reid v Georgia-Pacific Corp., supra. As a reasonable juror could decide that asbestos exposure from defendant Campbell's air compressors or compressor parts was a contributing cause of Mr. Nankervis' lung cancer, sufficient issues of fact exist to preclude summary judgment. Accordingly, it is ORDERED that defendant Campbell's motion for summary judgment is denied in its entirety; and it is further 190346/2017 NANKERVIS, KENNETH vs. A.O. SMITH WATER PRODUCTS CO Motion No. 007 [* 4] 4 of 5 Page 4 of 5 INDEX NO. 190346/2017 NYSCEF DOC. NO. 690 RECEIVED NYSCEF: 11/21/2023 ORDERED that within 30 days of entry plaintiff shall serve all parties with a copy of this Decision/Order with notice of entry. This constitutes the Decision/Order of the Court. 11/21/2023 DATE CHECK ONE: ADAM SILVERA, J.S.C. CASE DISPOSED GRANTED 0 NON-FINAL DISPOSITION DENIED APPLICATION: SETTLE ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN 8 GRANTED IN PART OTHER REFERENCE SUBMIT ORDER FIDUCIARY APPOINTMENT 190346/2017 NANKERVIS, KENNETH vs. A.O. SMITH WATER PRODUCTS CO Motion No. 007 [* 5] 5 of 5 Page 5 of 5

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