Wagner v. Aerco Intl., Inc

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Wagner v Aerco Intl., Inc, 2024 NY Slip Op 31370(U) April 19, 2024 Supreme Court, New York County Docket Number: Index No. 190169/2021 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. 190169/2021 NYSCEF DOC. NO. 296 RECEIVED NYSCEF: 04/19/2024

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. ADAM SILVERA PART 13 Justice ----·--------------------------X INDEX NO. 190169/2021 MICHAEL C WAGNER, MOTION DATE 01/02/2024 Plaintiff, MOTION SEQ. NO. _ _ _0_0_3_ _ - V -

AERCO INTERNATIONAL, INC, AMCHEM PRODUCTS, INC., N/K/A RHONE POULENC AG COMPANY, N/K/A BAYER CROPSCIENCE INC, AMERICAN BILTRITE INC, AMERICAN HONDA MOTOR CO., INC. (AHM), ARVINMERITOR, INC., INDIVIDUALLY AND AS SUCCESSOR-IN-INTEREST TO ROCKWELL AUTOMOTIVE, BMCE INC., F/K/A UNITED CENTRIFUGAL PUMP, BMW OF NORTH AMERICA LLC,CARLISLE INDUSTRIAL BRAKE & FRICTION, INC, CBS CORPORATION, F/K/A VIACOM INC., SUCCESSOR BY MERGER TO CBS CORPORATION, F/K/A WESTINGHOUSE ELECTRIC CORPORATION, DCO LLC F/K/A DANA COMPANIES, LLC,DOMCO PRODUCTS TEXAS, INC, EATON CORPORATION, INDIVIDUALLY AND AS SUCCESSOR -IN-INTEREST TO CUTLER- HAMMER, INC, ECHLIN INC, FORD MOTOR COMPANY, GENERAL ELECTRIC COMPANY, GOODYEAR CANADA, INC, GOULDS PUMPS LLC,HALDEX BRAKE PRODUCTS CORPORATION AS SUCCESSOR IN INTEREST TO GREY ROCK BRAKES, HARSCO CORPORATION, AS DECISION+ ORDER ON SUCCESSOR TO PATTERSON-KELLEY COMPANY, INC., MOTION INDIVIDUALLY AND D/B/A PATTERSON-KELLEY, HONEYWELL INTERNATIONAL, INC., F/K/A ALLIED SIGNAL, INC./ BENDIX, ISUZU MOTORS AMERICA, INC, KAISER GYPSUM COMPANY, INC, LEVITON MANUFACTURING CO., INC, LIPE-AUTOMATION CORPORATION, MANNINGTON MILLS, INC, MERCEDES- BENZ USA, LLC,F/K/A MERCEDES-BENZ USA, INC. AND MERCEDES-BENZ OF NORTH AMERICA, INC, MERCURY MARINE, INC, MORSE TEC LLC,F/K/A BORG WARNER MORSE TEC LLC AND SUCCESSOR-BY- MERGER TO BORG-WARNER CORPORATION, MR. GASKET COMPANY, NISSAN NORTH AMERICA, INC, PFIZER, INC. (PFIZER), PNEUMO ABEX LLC,SUCCESSOR IN INTEREST TO ABEX CORPORATION (ABEX), STANDARD MOTOR PRODUCTS, INC, SUBARU OF AMERICA, INC, TARKETT INC, TENNECO AUTOMOTIVE OPERATING COMPANY INC, THE B.F. GOODRICH COMPANY, (GOODRICH CORPORATION), THE GOODYEAR TIRE AND RUBBER COMPANY, THE HEIL CO. D/B/A HEIL TRAILER

190169/2021 WAGNER, MICHAEL C vs. AERCO INTERNATIONAL, INC ET AL Page 1 of 6 Motion No. 003

INDEX NO. 190169/2021 NYSCEF DOC. NO. 296 RECEIVED NYSCEF: 04/19/2024

Here, plaintiff correctly argues that, although the Appellate Division found this 2007 EPI

study to be sufficient to establish entitlement to summary judgment in Dyer, the facts of the

instant action and the instant plaintiffs exposure to the asbestos in defendant American Biltrite's

Amtico tiles differ from the exposure of the plaintiff in the Dyer action. The standard for

summary judgment is clear, and the facts of each individual action must be applied to the

specific proofs provided. In the instant action, defendant American Biltrite has failed to meet its

initial burden in unequivocally establishing that its Amtico tiles could not have contributed to

causing plaintiffs mesothelioma. The 2007 EPI study has established, and the Appellate

Division, First Department, has found in Dyer that "the levels of respirable asbestos emitted from

the vinyl tiles did not exceed ambient levels" when such tiles were "cut, scored/snapped". Id.

This study, relied upon by moving defendant, is wholly silent as to the levels of respirable

asbestos released from and inhaled by plaintiff when the Amtico tiles are sanded. Plaintiff

specifically testified that during his employment, he would use an electric belt sander to sand the

Amtico tiles creating asbestos dust which he breathed in. Thus, defendant American Biltrite has

failed to meet its burden under Dyer and Reid, supra. Given that it is undisputed that defendant

American Biltrite manufactured or sold asbestos-containing Amtico tiles which exposed plaintiff

to asbestos dust, and that moving defendant has failed to unequivocally establish that its Amtico

tiles could not have contributed to causing plaintiffs mesothelioma when such tiles were

routinely sanded releasing asbestos dust, the instant motion is denied. Moreover, plaintiff has

offered conflicting evidence regarding causation, sufficient to raise issues of fact to preclude

summary judgment.

Accordingly, it is

190169/2021 WAGNER, MICHAEL C vs. AERCO INTERNATIONAL, INC ET AL Page 5 of 6 Motion No. 003

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INDEX NO. 190169/2021 NYSCEF DOC. NO. 296 RECEIVED NYSCEF: 04/19/2024

ORDERED that defendant American Biltrite's motion for summary judgment is denied

in its entirety; and it is further

ORDERD that all parties shall appear in Part 40, room 422 of 60 Centre Street, New

York, NY 10007 on May 7, 2024 at 9:30am for trial, and be prepared to proceed with jury

selection; and it is further

ORDERED that within 14 days of entry, plaintiff shall serve a copy of this decision/order

upon all parties with notice of entry.

This constitutes the Decision/Order of the Court.

4/19/2024 DATE ADAM SILVERA, J.S.C.

~ CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION

APPLICATION:

CHECK IF APPROPRIATE: GRANTED

SETTLE ORDER 0 DENIED

INCLUDES TRANSFER/REASSIGN 8 GRANTED IN PART

SUBMIT ORDER

FIDUCIARY APPOINTMENT □ OTHER

□ REFERENCE

190169/2021 WAGNER, MICHAEL C vs. AERCO INTERNATIONAL, INC ET AL Page 6 of 6 Motion No. 003

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Footnotes

[1] of 6 [* 1] INTERNATIONAL, TOYOTA MOTOR SALES U.S.A., INC, VOLVO CARS OF NORTH AMERICA, UNION CARBIDE CORPORATION, WEIL-MCLAIN, A DIVISION OF THE MARLEY-WYLAIN COMPANY, A WHOLLY OWNED SUBSIDIARY OF THE MARLEY COMPANY, LLC, Defendant. --------------------------------------X The following e-filed documents, listed by NYSCEF document number (Motion 003) 219, 220, 221, 222, 223,224,225,226,227,228,229,230,231,232,251,273,274,275,276,277,278,279,280,281,282, 283 were read on this motion to/for SUMMARY JUDGMENT(AFTER JOINDER Upon the foregoing documents, it is ordered that defendant American Biltrite Inc.'s instant motion for summary judgment seeking to dismiss the complaint and all cross-claims against it is denied for the reasons set forth below. Here, defendant American Biltrite moves for summary judgment seeking to dismiss this action on the grounds that plaintiffs exposure to asbestos from Amtico brand floor tiles during the course of his employment doing floor work from 1963 to the end of August 1966 was of insufficient quantity to have caused plaintifrs illness. Defendant American Biltrite contends that this action must be dismissed as plaintiff is unable to establish specific or general causation. In support, moving defendant proffers, inter alia, the 2007 expert report and study of John W. Spencer, an industrial hygienist, finding that exposure to asbestos from Amtico floor tiles, when snapped and scored, would not have exposed plaintiff to higher than normal levels of asbestos. In opposition, plaintiff highlights plaintiff Michael Wagner's extensive exposure to asbestos from Amtico floor tiles as an apprentice installer during the 1960s when he sanded, snapped, and scored such floor tiles. Further, plaintiff offers conflicting expert opinions regarding plaintiff's exposure to Amtico floor tiles and its causal connection to his 190169/2021 WAGNER, MICHAEL C vs. AERCO INTERNATIONAL, INC ET AL Page 2 of 6 Motion No. 003

[2] of 6 [* 2] mesothelioma. Plaintiff additionally notes that moving defendant has failed to meet its initial burden. Moving defendant replies. 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] (1 st Dep't 1992), citing Dauman Displays, Inc. v Masturzo, 168 AD2d 204 (1 st 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. 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". Reid v Georgia-Pacific Corp., 212 AD2d 462, 463 (1 st Dep't 1995). 190169/2021 WAGNER, MICHAEL C vs. AERCO INTERNATIONAL, INC ET AL Page 3 of 6 Motion No. 003 3 of 6 [* 3] The appropriate standard at summary judgment for moving defendant American Biltrite 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. The Appellate Division, First Department, recently affirmed this Court's decision in Sason v Dykes Lumber Co., Inc., et. al., 2023 NY Slip Op 05796 (1st Dep't 2023), stating that "the parties' competing causation evidence constituted the classic 'battle of the experts"' sufficient to raise a question of fact, and to preclude summary judgment. In this motion, defendant American Biltrite argues that the 2007 expert report of John W. Spencer sufficiently establishes that plaintiff was not exposed to levels of respirable asbestos which exceeded ambient levels. According to moving defendant, the Appellate Division, First Department, reviewed and considered this exact report in Dyer, supra, finding that in the 2007 Environmental Profiles, Inc. study, "a worker and a helper. .. cut, scored/snapped Amtico tiles in an isolation test chamber, simulating an eight-hour 'shift'. Air sample cassettes were attached to the worker and the helper in each of their breathing zones. The fibers collected at the conclusion of the eight-hour study were reportedly less than 0.00044 flee (fiber per cubic centimeter). Based upon the results of the 2007 EPI study ... [American Biltrite's] experts concluded that the decedent's time weighted average exposure to chrysotile asbestos was below the OSHA eight- hour permissible exposure limit (PEL) of 0.1 flee, and also indistinguishable from 0.00000033 flee the lifetime cumulative exposure that the general public is exposed to in the ambient air that we all breathe." Dyer v Amchem Products, Inc., 207 AD3d 408, 411 (1 st Dep't 2022). The Appellate Division in Dyer found that "[t]he 2007 EPI study establishes [defendant American Biltrite's] prima facie case as to specific causation" in that action. Id. 190169/2021 WAGNER, MICHAEL C vs. AERCO INTERNATIONAL, INC ET AL Page 4 of 6 Motion No. 003 4 of 6 [* 4]