FILED: NEW YORK COUNTY CLERK 10/23/ :40 PM INDEX NO /2016 NYSCEF DOC. NO. 121 RECEIVED NYSCEF: 10/23/2018

Transcription

1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK IN RE: NEW YORK CITY ASBESTOS LITIGATION NYCAL I.A.S. Part 13 (Mendez, M.) MARIO PICCOLINO and ARCANGELA Index No /2016 PICCOLINO, Plaintiffs, APRIL 2017 In-Extremis Weitz & Luxenberg -against- A.B. DICK COMPANY, et al., NOTICE OF MOTION FOR SUMMARY JUDGMENT Defendants. PLEASE TAKE NOTICE, that upon the annexed Affirmation Armand Kalfayan, Esq., dated October 23, 2018, together with all pleadings and proceedings heretofore and herein, defendant, HARRIS CORPORATION (hereinafter "Harris"), will move this Court, pursuant to CPLR 3212 and Paragraph XXI of the N.Y.C.A.L. Amended Case Management Order, dated July 20, 2017, at Room 130, Motion Submission Part of the Supreme Court of the State of New York, County of New York, 60 Centre Street, New York, New York on the 14th day Of November, 2018 at 9:30 a.m., or as soon thereafter as counsel may be heard, for an Order granting summary judgment dismissing all claims and related cross-claims against defendant Harris and for such other and further relief as the Court may deem just and proper. {N } 1 of 10

2 PLEASE TAKE FURTHER NOTICE, that pursuant to CPLR 2214(b), answering papers, if any, are to be served upon the undersigned at least seven (7) days prior to the return date of the motion. Dated: New York, New York October 23, 2018 Respectfully submitted, Armand Kalfayan, Esq. McGIVNEY, KLUGER & COOK, P.C. Attorneys for Defendant, HARRIS CORPORATION 23rd 80 Broad Street, F10Or New York, NY {N } 2 2 of 10

3 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK NYCAL IN RE: NEW YORK CITY ASBESTOS LITIGATION I.A.S. Part 13 (Mendez, M.) MARIO PICCOLINO and ARCANGELA Index No /2016 PICCOLINO, Plaintiffs, April 2017 In-Extremis Weitz & Luxenberg -against- A.B. DICK COMPANY, et al., Defendants. AFFIRMATION IN SUPPORT OF THE HARRIS CORPORATION'S MOTION FOR SUMMARY JUDGMENT Armand Kalfayan, Esq., an attorney duly admitted to practice law before the Courts of the State of New York, hereby affirms the truth of the following under penalties of perjury: 1. I am a partner with the law firm of McGivney, Kluger & Cook, P.C., counsel for defendant Harris Corporation (hereinafter "Harris") in the above-referenced action. Unless otherwise stated, this Affirmation is made upon information and belief based upon a review of the files maintained in this action. 2. This Affirmation is submitted in support of motion for an Order, pursuant to CPLR 3212 and Paragraph XXI of the N.Y.C.A.L. Amended Case Management Order, dated July 20, 2017 ("CMO"), for summary judgment dismissing all claims and all related crossclaims against Harris, in that, there is no genuine issue of material fact present to support Plaintiff's cause of action against Harris. STATEMENT OF FACTS 3. On July 1, 2016, plaintiff Mario Piccolino commenced this action in the Supreme Court, State of New York, New York County. Defendant Harris Corporation f/k/a Harris- {N } 3 of 10

4 Intertype Corporation (hereinafter "Harris") was named as a defendant in the complaint. A true and accurate copy of Plaintiff's Summons and Complaint, dated July 1, 2016, is attached as Exhibit "A." 4. Harris timely filed its answer on August 5, A true and accurate copy of Harris Corporation's Answer dated August 5, 2016, is attached as Exhibit "B." 5. Plaintiff was deposed on October 13 and 14, A true and accurate copy of Plaintiff's discovery deposition transcripts are attached as Exhibit "C." 6. Plaintiff alleges that he developed mesothelioma as a result of his exposure to asbestos during residential renovations, while serving in the U.S. Navy from 1952 to 1956, and during his career as a helper to a press mechanic from 1956 to 1961 or See Exhibit C at 45:11-48:19; 73:20-75:20; 104:20-22; 105:24-106:12; 113:10-23; 138:10:11; 139:1-7; 240:16-241:6. 7. Harris was sued in this matter for alleged liabilities associated with Intertype machines. Intertype was a manufacturer of typesetting machines, which were used to cast letters that would be assembled into text. Once the desired text was assembled, a press machine printed the text. A photograph of an Intertype machine is attached for the Court's reference. A true and accurate photograph depicting an Intertype machine is attached as Exhibit "D." 8. It is important to note that Plaintiff identified multiple types of printing-related machines present at his work sites. These machines were manufactured by various entities. Two of the brand of typesetting machines that Plaintiff identified were Linotype and Intertype machines, which worked independently from each other and other identified equipment. While Linotype machines are similar in nature to Intertype reachiñês, it is undisputed that Linotype machines were manufactured by co-defendant Mergañthaler and have no bearing on involvement in this action. {N } 2 4 of 10

5 9. In pertinent part, Plaintiff discussed Intertype machines in connection with two employments: (1) Lanzar and Ricker and (2) Apex Printing Machinery. See Exhibit C at 104:20-22; 111:22-25; 138:2-11; 240:16-241: Specifically, Plaintiff worked as a maintenance helper from 1956 to 1959 at Lanzar and Ricker ("Lanzar") and from 1959 to 1961 or 1962 with Apex Printing. See Exhibit C at 104:17-106:12; 113:3-9; 138:10-139:11. As he described, Plaintiff's role was limited to handing Lanzar and Apex's mechanics the tools needed to adjust settings of the subject Intertype machines. See Exhibit C at 248:12-249:8; 255: Notably, Plaintiff admitted that dust was n_ot created as a result of his work involving Intertype machines. See Exhibit C. More specifically, and consistently, Plaintiff admitted he never actually worked on an Intertype machine, and never touched, applied asbestos, or observed his colleagues apply asbestos to an Intertype. See Exhibit C at 248:12-249:8; 251:19:253:12; 255:7-16. Despite this testimony, Plaintiff alleged exposure to asbestos from being in the vicinity of a lead melting pot/bucket located on the side of the Intertype machine(s). See Exhibit C at 113:3-114:2. Overall, Plaintiff's allegations are all premised on the fact that he was simply in the presence of Intertype machines during his employment. See Exhibit C at 240:16-241:6; 248:12-249:8; 255: His only basis for alleging exposure from this work was the presence of unidentified "5 pound bags of asbestos" near the Intertype and Linotype machines, which were located next to one another. See Exhibit C at 227:9-229:6. In this regard, Plaintiff testified as follows: Q. Why do you believe that that material was asbestos? A. Because they -- that's what it was, it was asbestos because it says right on the bag, you know, the 5 pound bag that they put around there that it came in, it says asbestos on it. {N l} 3 5 of 10

6 Q. Did [the mechanic] ever tell you that this material around the bucket was asbestos.... A. No. Q. Did you ever observe [the mechanic] touching this material that was placed outside the bucket? A. I don't remember. Q. Mr. Piccolino, you never touched that material that was on the bucket, did you? A. No, I didn't.... Q. And you never personally saw anyone make repairs to that material around the pot or bucket? A. No. See Exhibit C at 226:15-227:12; 232:8-11. (Emphasis added) 13. Plaintiff was unable to describe an Intertype machine in any meaningful way. Apart from recalling that "Intertype" was written on a plate attached to the front of the machine, he could not provide any identifying details of an Intertype machine, including its application, function, or dimensions. See Exhibit C at 112:1-113:2; 246:13-20; 248:3-7; 249:13-250: Based on Plaintiff's own admissions, Intertype could not have been a cause of his asbestos exposure. Plaintiff admittedly never worked on an Intertype machine, and never touched, applied asbestos, or observed his colleagues apply asbestos to an Intertype. The mere presence of Intertype machines at these locations cannot be a source of Plaintiff's asbestos exposure. Intertype machines could not have contributed to Plaintiffs injury. 15. As a matter of law, motion for summary judgment should be granted in full. {N } 4 6 of 10

7 ARGUMENT A. Summary Judgment Standard 16. Pursuant to CPLR 3212(b), a summary judgment motion "shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any part." 17. In New York, to succeed on a summary judgment motion, the movant must demonstrate the absence of any material issues of fact. Sillman v. Twentieth Century Fox Corp., 3 N.Y.2d 395, 400 (1957); see also Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 321 (1986); Andre v. Pomeroy, 35 N.Y.2d 362 (1974). Thereafter, the burden shifts to the motion's opponent who must produce evidence, in admissible form, that there is indeed a triable issue of fact. Zuckerman v. City of New York, 49 N.Y.2d 557, 560 (1980). Failure to present such evidence will result in the granting of the motion. See Friends of Animals, Inc. v. Assoc. Fur Mfrs., Inc., 46 N.Y.2d 1065, 1068 (1979). 18. In order to meet this high burden set by Section 3212, a moving defendant in asbestos-related litigation, must demonstrate that its product "could not have contributed to the causation of plaintiffs injury." In re New York City Asbestos Litig. (Feinberg), 39 N.Y.S.3d 629, (N.Y. Sup. Ct. 2016) (quoting Matter of New York City Asbestos Litig. (Berensmann), 122 A.D.3d 520, 521 (1st Dep't.2014); Matter of New York City Asbestos Litig. (DiSalvo), 123 A.D.3d 498 (1st Dep't.2014). An unequivocal showing that defendant's product did not contribute to the camation of plaintiff's injury shifts the burden to the plaintiff who must produce evidentiary proof, in admissible form, that there is indeed a triable issue of fact. Zuckerman, 49 N.Y.2d at Upon this burden shift, the plaintiff must then demonstrate actual exposure to asbestos fibers released from a product the defendant manufactured, rebranded, sold, shipped, {N } 5 7 of 10

8 installed or distributed. Cawein v. Flintkote Co., 203 A.D.2d 105, 106 (1st Dep't 1994). The plaintiff is required to "show facts and conditions from which defendant's liability may be teasoñably inferred." Reid v. Georgia Pac. Corp., 212 A.D.2d 462, 463 (1st Dep't. 1995). The failure to present such evidence will result in the granting of the motion. See Friends of Animals, 46 N.Y.2d As detailed below, Plaintiff cannot demonstrate actual exposure associated with Intertype rnachines or show facts and conditions from which liability may be reasonably inferred. B. Harris is Entitled to Summary Judgment as a Matter of Law as No Exposure to Asbestos is Alleged Related to a Harris Product. 21. A plaintiff must present evidentiary material creating a reâ3onâble inference that a plaintiff inhaled asbestos fibers from a defendant's product. Cawein, 203 A.D.2d at 106. The mere presence of a defendant's product at a site where plaintiff worked is insufficient to prove liability. See Id. The evidence must clearly indicate that the plaintiff was exposed to asbestos from a specific defendant's product. See Id. In Diel v. Flintkote Co., the Court emphasized the Cawein threshold requiement by holding that "[i]n order to succeed on their claim, the plaintiff had to establish that the decedent was exposed to defendant's product and that it was more likely than not that this exposure was a substantial factor in his injury." 204 A.D.2d 53, 54 (1st Dept. 1994). In granting summary judgment for the defendant, the Diel court held that the plaintiff failed to create a reasonable inference that the decedent was exposed to asbestos fibers from the defendant's product.id 22. In Cawein, a case with similar facts to the case at bar, the plaintiffs sued numerous manufacturers of asbestos, including Flintkote, alleging that the plaintiff's decedent died as a result of his exposure to asbestos products supplied by the defendants. See Cawein, 203 {N ) 6 8 of 10

9 A.D.2d at 105. Flintkote moved for summary judgment arguing, in pertinent part, that the plaintiff failed to provide any evidence that Flintkote's asbestos products had been used by or near the decedent. Id In opposition, the plaintiffs submitted an affidavit in which the decedent's co-worker stated that he had seen bags containing Flintkote asbestos fiber at the worksite. Idat 106. However, the co-worker never stated that he had ever seen specifically Flintkote bag opened or the fiber being used. Id at The trial court denied Flintkote's motion, on the grounds that the plaintiff provided sufficient evidence that Flintkote caused the plaintiffs' asbestos related disease. Id. at 105. However, the First Department reversed, holding: It is not enough...that a bag or bags of [defendant's] fiber be seen in the plant; it must be shown that plaintiff was exposed to asbestos fibers released from defendant's products... Plaintiff has not presented evidentiary material creating a reasonable inference that Cawein inhaled asbestos fibers from a Flintkote product. Without some showing on this threshold question, there can be no possible finding of proximate cause in Flintkote's products. Id at 106. [Emphasis added] 24. Plaintiff's own testimony here establishes that a reasonable inference cannot be made to suggest he inhaled asbestos fibers from an Intertype machine. Plaintiff's testimony establishes that he never actually worked on an Intertype machine, and never touched, applied asbestos, or observed his colleagues apply asbestos to an Intertype. Plaintiff's failure to meaningfully describe an Intertype machine demonstrates how limited his interaction with the machinery was. 25. As the First Department stated in Cawein, it is not enough that Intertype machines were present at Plaintiff's worksites; Plaintiff must show that he was exposed to asbestos released from the machines. Id at 106. {N } 7 9 of 10

10 26. Given that Harris has demonstrated that Intertype machines could not have contributed to the causation of Plaintiff's injury, motion for summary judgment should be granted. CONCLUSION 27. Based on the foregoing, and a record devoid of any sufficient evidentiary basis that Plaintiff was exposed to asbestos-containing materials from a product manufactured, supplied, distributed, or sold, by Harris, Harris is entitled to summary judgment as a matter of law. 28. No previous application has been made to this court or any other court for the relief sough herein. WHEREFORE, defendant Harris Corporation respectfully requests that the Court grant summary judgment motion in its entirety, and issue an Order dismissing, with prejudice, all claims and related cross-claims against Harris, and for such other and further relief as this Court may deem just and proper. Dated: New York, New York October 23, 2018 Respectfully submitted, Armand Kalfayan, Esq. McGIVNEY, KLUGER & COOK, P.C. Attorneys for Defendant, HARRIS CORPORATION 80 Broad Street, 23rd Floor New York, NY {N } 8 10 of 10