Allen v Air & Liquid Sys. Corp NY Slip Op 30091(U) January 11, 2019 Supreme Court, New York County Docket Number: /2016 Judge: Manuel J.

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1 All v Air & Liquid Sys. Corp. 219 NY Slip Op 391(U) January 11, 219 Supreme Court, Ne York County Docket Number: 19352/216 Judge: Manuel J. Mdez Cases posted ith a "3" idtifier, i.e., 213 NY Slip Op 31(U), are republished from various Ne York State and local governmt sources, including the Ne York State Unified Court System's ecourts Service. This opinion is uncorrected and not selected for official publication.

2 [* FILED: 1] NEW YORK COUNTY CLERK 1/11/219 12:37 PM INDEX NO /216 SUPREME COURT OF THE STATE OF NEW YORK- NEW YORK COUNTY PRESENT: MANUEL J. MENDEZ Justice IN RE: NEW YORK CITY ASBESTOS LITIGATION PART--"1-=-3 LORRAINE ALLEN, Individually and as Executor of the Estate of PETER ALLEN, Deceased, - against - Plaintiffs, AIR & LIQUID SYSTEMS CORP., et al., Defdants. INDEX NO. MOTION DATE MOTION SEQ. NO. MOTION CAL. NO /216 12/12/218 6 The folloing papers, numbered 1 to_i_ ere read on this motion for summary judgmt by Aurora Pumps Inc.: PAPERS NUMBERED Notice of Motion/ Order to Sho Cause - Affidavits - Exhibits z (.) <( _ I- a:: (.!) ::> z.., - 3: I- c...j...j a:: a:: LL. WW LL. :c l a:: a:: >-...J LL....J ::> LL.... (.) a.. a:: <( (.) -z j::: :IE Ansering Affidavits - Exhibits =-4_-..;;,6 Replying Affidavits ~------_.,_7 Cross-Motion: D Yes X No Upon a reading of the foregoing cited papers, it is Ordered that defdant, Armstrong Pumps Company's (hereinafter referred to as "Aurora") motion for summary judgmt pursuant to CPLR 3212 dismissing the plaintiffs' complaint and all cross-claims asserted against it, is died. In July 216 Peter All as diagnosed ith malignant pleural mesothelioma (Opp. LaTerra Aff., Exh. 1). On October 3, 217 Mr. All (hereinafter referred to as "decedt") died from the disease (Opp. LaTerra Aff, Exh. 2) Plaintiff, Lorraine All, the surviving spouse of the decedt alleges he as exposed to asbestos in a variety of ays. Decedt's alleged exposure - as relevant to this motion - is from exposure to crumbling asbestos insulation on Aurora pumps during his service in the United States Navy as an Electrician's Mate aboard the LST 528 (subsequtly named the U.S.S. Catahoula Parish) and the U.S.S. Marquette. The decedt testified he as exposed to asbestos hile repairing motors and pumps throughout the ship by the removal and replacemt of asbestos insulation. He further testified that on a daily basis he as about a foot aay from Machinist Mates ho orked on the pumps hile he as orking on the motors and observed crumbling asbestos insulation, brittle insulators and the dust that as flying during the repairs (Opp. La Terra Aff., Exh. 4, pgs 6-61, 65, , , 161). Decedt as unable to specifically idtify the manufacturer of the pumps he orked on and testified that this as because the labels ere painted over ith a "battleship grey" color. Decedt testified that he as exposed to asbestos from various pumps throughout the ship including bilge pumps, vtilation pumps, heating and air conditioning pumps, and ater pumps (Opp. LaTerra Aff., Exh. 4, pgs. 67 and ). Aurora provided proof of compliance ith paragraph XXI of the NYCAL Amded Case Managemt Order (CMO) by annexing a copy of s dated January 18, 218, that ere exchanged ith plaintiffs' attorneys, to attempt to obtain No Opposition Summary Judgmt (Mot. Carni Aff., Exh. A). Aurora also 1 1 of 4

3 [* FILED: 2] NEW YORK COUNTY CLERK 1/11/219 12:37 PM INDEX NO /216 refers to other request made on March 3, 217, June 5, 217, and November 22, 217 (NYSCEF Doc. Nos. 52, 62, 7, 79). Aurora's motion seeks an Order granting summary judgmt pursuant to CPLR 3212, dismissing the plaintiffs' complaint and all cross-claims asserted against it. To prevail on a motion for summary judgmt the propont must make a prima facie shoing of titlemt to judgmt as a matter of la, through admissible evidce, eliminating all material issues of fact (Klein v City of Ne York, 81 NY2d 833, 652 NYS2d 723 (1996]). It is only after the burd of proof is met that the burd sitches to the non-moving party to rebut that prima facie shoing, by producing contrary evidce in admissible form, sufficit to require a trial of material factual issues (Amatulli v Delhi Constr. Corp., 77 NY2d 525, 569 NYS2d 337 (1999]). In determining the motion, the court must construe the evidce in the light most favorable to the non-moving party by giving the nonmoving party the befit of all reasonable inferces that can be dran from the evidce (SSBS Realty Corp. v Public Service Mut. Ins. Co., 253 AD2d 583, 677 NYS2d 136 (1 51 Dept. 1998]). In support of its motion for summary judgmt Aurora relies solely on the affirmation of its attorney, the s (Mot. Carni Aff., Exh. A), Ship Records for the LST 528 provided by plaintiffs' counsel (Mot. Carni Aff., Exh. B), and the Affidavit of Charles D. Wasson their expert (Mot. Carni Aff., Exh. C). Aurora's attorney refers to a Verified Anser filed under NYSCEF Doc. No. 13; Plaintiff's Responses to Interrogatories filed under NYSCEF Doc. No. 132 (defdant Eton Corporation's Motion for Summary Judgmt, Exh. C); Decedt's Deposition testimony filed under NYSCEF Doc. Nos (defdant Alco Industries lnc.'s Motion for Summary Judgmt, Exhs. D & E); but none of these documts are idtified as exhibits or annexed to this motion. An attorney's affirmation, alone, is hearsay that may not be considered, and does not support, prima facie titlemt to summary judgmt (Kase v. H.E.E. Co., 95 A.O. 3d 568, 944 N.Y.S. 2d 95 (1 51 Dept., 212] citing to Zuckerman v. City of Ne York, 49 N.Y. 2d N.E. 2d 718, 427 N.Y.S. 2d 595 [198). Aurora relies on the hearsay affirmation of its attorney and failed to provide an affidavit from an individual ith personal knoledge in support of summary judgmt as required pursuant to CPLR 3212(b). A motion for summary judgmt can only be decided on the merits h an attorney's affirmation is used for the submission of documtary evidce in admissible form and annexes proof from an individual ith personal knoledge such as plaintiff's deposition testimony, hoever, Aurora did not idtify the deposition transcript as an exhibit, arranting dial of summary judgmt (See Aur v. Manhattan Grepoint Ltd., 132 A.O. 3d 595, 2 N.Y.S. 3d 6 (1 51 Dept.,215] and Hoeffner v. Orrick, Herrington & Sutcliffe LLP, 61 A.O. 3d 614, 878 N.Y.S. 2d 717 (1 51 Dept. 29]). Alternatively, to the extt plaintiff failed to argue that Aurora's motion relied on hearsay, there remain issues of fact, arranting dial of summary judgmt. Aurora argues that decedt's deposition testimony combined ith the declassified U.S. Navy records provided by plaintiffs' counsel and the expert affidavit of Charles D. Wasson establishes that there is no evidce that the decedt as exposed to Aurora pumps. It is argued that the decedt did not specifically idtify the pumps he and the Machinist Mates orked on as Aurora pumps because of the "battleship grey" paint. Aurora claims that the fresh ater pumps the decedt testified he orked on ere connected to the diesel gines, and those gines ere located in the gine room of the LST 528 (Mot. Exh. B). Defdants argue that the declassified 2 2 of 4

4 [* FILED: 3] NEW YORK COUNTY CLERK 1/11/219 12:37 PM INDEX NO /216 documts obtained from the United States Navy, that as provided by plaintiffs' attorney, only idtified Aurora pumps as located in the "Shaft Alley" hich is outside the gine rooms (Mot. Carni Aff., Exh. B). Aurora also relies on the expert affidavit of retired U.S. Navy Captain Charles D. Wasson that states the LST 528 is a tank landing ship, and that the declassified records sho that the pumps made by Aurora ere located in the "Shaft Alley C-414E" outside of the gine rooms. Captain Wasson also states that the decedt testifed that he orked ith fresh ater pumps connected to the diesel gines, and that on the LST 528, those pumps ere in the gine room, not the Shaft Alley (Mot. Carni Aff., Exh. C). Aurora further argues that the decedts failure to specifically idtify the pumps it manufactured or their actual location on the LST528 results in no testimonial or documtary evidce of exposure, arranting summary judgmt. "In asbestos-related litigation, the plaintiff on a summary judgmt motion must demonstrate that there as actual exposure to asbestos from the defdant's product" (Caein v Flintkote Co., 23 AD2d 15, 61 NYS2d 487 [1st Dept 1994]). The Plaintiff need "only sho facts and conditions from hich defdant's liability may be reasonably inferred" (Reid v Ga.-Pacific Corp., 212 AD2d 462, 622 NYS2d 946 [1st Dept. 1995]). A Plaintiff's inability to recall exact details of the exposure is not fatal to the claim and should not automatically result in the granting of summary judgmt (Lloyd v W.R. Grace & Co., 215 AD2d 177, 626 NYS2d 147 [1st Dept. 1995]). Summary judgmt must be died h the plaintiff has "prested sufficit evidce, not all of hich is hearsay, to arrant a trial" (Ok v A.C. & S. (/n re N.Y.C. Asbestos Litig.), 7 AD3d 285, 776 NYS2d 253 (1st Dept. 24]). Plaintiffs as the non-moving parties are titled to the befit of all favorable inferces, regardless of the decedt's ability to provide a detailed description of Aurora pumps or their specific location on the LST 528. The decedt never actually connected the ater pumps he orked on or near, to the gine room of the LST 528. The decedt testified that he orked ith and around differt types of pumps throughout the ship and idtified multiple pumps (Opp. LaTerra Aff., Exh. 4, pgs. 6, 67 and ). Plaintiffs correctly argue that neither Aurora or Captain Wasson died that Aurora pumps contained asbestos materials in gaskets that the decedt idtified at his deposition or that the pumps ith asbestos ere actually on the LST 528. Plaintiffs provide evidce that the gaskets on Aurora pumps ere supplied by John Crane and Aurora as notified in the 197s or early 198s that they contained asbestos (Opp. La Terra, Exhs. 7, 9 and Exh. 11 pgs ). "It is not the function of the Court deciding a summary judgmt motion to make credibility determinations or findings of fact, but rather to idtify material issues of fact (or point to the lack thereof) (Vega v. Restani Const. Corp., 18 N.Y. 3d 499, 965 N.E. 2d 24, 942 N.Y.S. 2d 13 (212]). Summary judgmt is a drastic remedy that should not be granted here conflicting affidavits about the ork performed by plaintiff cannot be resolved (Millerton Agay Cooperative v. Briarcliff Farms, Inc., 17 N.Y. 2d 57, 268 N.Y. S. 2d 18, 215 N.E. 2d 341 ~1966] and Ansah v. A.W.I. Sec. & Investigation, Inc., 129 A.O. 3d 538, 12 N.Y.S. 3d 35 (1 5 Dept., 215]). Conflicting testimony raises credibility issues, that cannot be resolved on papers and is a basis to dy summary judgmt (Messina v. Ne York City Transit Authority, 84 A.O. 3d 439, 922 N.Y.S. 2d 7 (211], Almonte v. 638 West 16 LLC, 139 A.O. 3d 439, 29 N.Y.S. 3d 178 [1st Dept., 216] and Doumbia v. Moonlight Toing, Inc., 16 A.O. 3d 554, 71N.Y.S.3d 884 [1st Dept., 218] citing to S.J. Capelin Assoc. v. Globe Mfg. Corp., 34 N.Y. 2d 338, 313 N.E. 2d 776, 357 N.Y.S. 2d 478 (1974]). Plaintiff has raised triable issues of fact as to hether Aurora's liability may be reasonably inferred from his ork on and around Aurora pumps on the LST 528. Decedt's deposition testimony that he orked throughout the ship, near Machinist Mates and on differt types of pumps, could reasonably be inferred by the jury to include the Aurora pumps located in the shaftay of the LST of 4

5 [* FILED: 4] NEW YORK COUNTY CLERK 1/11/219 12:37 PM INDEX NO /216 Decedt's failure to provide specific idtification of Aurora pumps and his referces to ork ith pumps related to the diesel gines that ere located in the boiler room does not mean that he as not exposed to the Aurora pumps as part of his ork elsehere on the ship. There remain issues of fact as to hether the decedt had exposure to the asbestos that caused his mesothelioma from orking ith or around Aurora pumps. The conflicting evidce and testimony raise issues of fact that cannot be resolved on a motion for summary judgmt. ' Accordingly, it is ORDERED that defdant, Armstrong Pumps Company's motion for summary judgmt pursuant to CPLR 3212 dismissing the plaintiffs' complaint and all cross-claims asserted against it, is died. ENTER: Dated: January 11, 219 i MAN~NDEZ J.S.C. MANUELJ.MENDEZ J.S.C. Check one: FINAL DISPOSITION X NON-FINAL DISPOSITION <:;heck if appropriate: DO NOT POST D REFERENCE r r 4 4 of 4