Daly v Amchem Prods., Inc. 2023 NY Slip Op 34539(U) December 27, 2023 Supreme Court, New York County Docket Number: Index No. 190297/2019 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. 190297/2019 NYSCEF DOC. NO. 191 RECEIVED NYSCEF: 12/27/2023
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. ADAM SILVERA PART 13 Justice --------------------------- ----------------------------X INDEX NO. 190297/2019 MARY DALY, AS ADMINISTRATRIX FOR THE ESTATE MOTION DATE 10/10/2023 OF JOHN B DALY JR. AND MARY DALY, INDIVIDUALL,
Plaintiff, MOTION SEQ. NO. _ _ _00_2_ _
-v- AMCHEM PRODUCTS, INC., N/K/A RHONE POULENC AG COMPANY, N/K/A BAYER CROPSCIENCE INC, PARAMOUNT GLOBAL, F/K/A VIACOMCBS INC.,F/K/A CBS CORPORATION, A DELAWARE CORPORATION, F/K/A/ VIACOM INC.,SUCCESSOR BY MERGER TO CBS CORPORATION, A PENNSYLVANIA CORPORATION, F/K/A WESTINGHOUSE ELECTRIC CORPORATION, CERTAINTEED CORPORATION, CLEAVER BROOKS COMPANY, INC, CRANE CO, CRANE CO. INDIVIDUALLY AND AS SUCCESSOR TO PACIFIC VALVES, CROSBY VALVE LLC,ELECTROLUX HOME PRODUCTS, INC. INDIVIDUALLY, AND AS SUCCESSOR TO TAPPAN AND COPES-VULCAN, FISHER CONTROL VALVES, FISHER CONTROLS INTERNATIONAL, LLC F/K/A FISHER CONTROLS CO., AS SUCCESSOR IN INTEREST TO FISHER GOVERNOR COMPANY, FLOWSERVE US, INC. INDIVIDUALLY AND SUCCESSOR TO ROCKWELL MANUFACTURING COMPANY, EDWARD VALVE, INC.,NORDSTROM DECISION + ORDER ON VALVES, INC., EDWARD VOGT VALVE COMPANY, AND MOTION VOGT VALVE COMPANY, FOSTER WHEELER, L.L.C, GENERAL ELECTRIC COMPANY, GOULDS PUMPS LLC,IMO INDUSTRIES, INC, LANDIS & GYR, INC, PFIZER, INC. (PFIZER), ROCKWE;LL AUTOMATION, INC., INDIVIDUALLY, AND AS SUCCESSOR TO ROCKWELL INTERNATIONAL CORP., NORTH AMERICAN ROCKWELL, AND ROCKWELL MANUFACTURING COMPANY, ROCKWELL AUTOMATION, INC.,AS SUCCESSOR IN INTEREST TO ALLEN~ BRADLEY COMPANY, LLC,U.S. RUBBER COMPANY (UNIROYAL), UNION CARBIDE CORPORATION, CONSOLIDATED EDISON COMPANY OF NEW YORK, INC.,COURTER & COMPANY INCORPORATED, INDUSTRIAL HOLDINGS CORPORATION INDIVIDUALLY AND AS SUCCESSOR IN INTEREST TO CARBORUNDUM, NORTON PACKO INDUSTRIAL CERAMICS, INC.,SAINT-GOBAIN ABRASIVES, INC.,INDIVIDUALLY, AND AS SUCCESSOR TO NORTON COMPANY,
Defendant.
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------------------------------------ -----------------X The following e-filed documents, listed by NYSCEF document number (Motion 002) 120, 121, 122, 123, 124, 125, 126, 127, 139, 140, 141, 142, 143, 144, 145, 146, 147, 148, 149, 150, 151, 152, 154, 156, 157, 162,163,164,165 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 granted for the reasons set
forth below.
Here, defendant Crosby Valve, LLC ("Crosby") moves to dismiss this action on the
grounds that plaintiff, John B. Daly, Jr. ("Mr. Daly") was not exposed to asbestos from any
Crosby product. See Memorandum of Law in Support of Crosby Valve, LLC's Motion for
Summary Judgment. In opposition, plaintiff highlights Mr. Daly's clear and unequivocal
testimony identifying Crosby as a manufacturer of valves containing asbestos-containing parts
during the course of his work as a Con Ed mechanic 1974-2012. See Affirmation in Opposition
to Defendant Crosby Valve, LLC's Motion for Summary Judgment.
Specifically, defendant Crosby's motion is based on Mr. Daly's testimony that he was
exposed to asbestos from "flange gaskets" used along with Crosby valves, and not actually
manufactured by Crosby. See Reply Memorandum of Law of Defendant Crosby Valve, LLC, In
Support of Motion for Summary Judgment, p. 3-4.
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". Winegradv New York
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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 ofNew 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 J.C. Duggan, Inc., 180 AD2d 579, st 580 (1 st Dep't 1992), citing Dauman Displays, Inc. v Masturzo, 168 AD2d 204 (1 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 (Pt Dep't 1995).
Ordinarily, the appropriate standard at summary judgment for moving defendant Crosby
in an asbestos action would be that of 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
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judgment. However, in the instant motion, defendant Crosby correctly identifies In re New York
City Asbestos Litigation (Dummitt), 27 NY3d 765, 799 (N.Y. 2016) as the standard governing
defendant's liability for solely a third-party product.
The Court finds that Mr. Daly's testimony does not indicate any products manufactured
by defendant Crosby, and that moving defendant has provided evidence that such gaskets were
not required by Crosby for the use of their valves. Plaintiffs exhibits have been identified as
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Daly v Amchem Prods., Inc. 2023 NY Slip Op 34539(U) December 27, 2023 Supreme Court, New York County Docket Number: Index No. 190297/2019 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. 190297/2019 NYSCEF DOC. NO. 191 RECEIVED NYSCEF: 12/27/2023
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. ADAM SILVERA PART 13 Justice --------------------------- ----------------------------X INDEX NO. 190297/2019 MARY DALY, AS ADMINISTRATRIX FOR THE ESTATE MOTION DATE 10/10/2023 OF JOHN B DALY JR. AND MARY DALY, INDIVIDUALL,
Plaintiff, MOTION SEQ. NO. _ _ _00_2_ _
-v- AMCHEM PRODUCTS, INC., N/K/A RHONE POULENC AG COMPANY, N/K/A BAYER CROPSCIENCE INC, PARAMOUNT GLOBAL, F/K/A VIACOMCBS INC.,F/K/A CBS CORPORATION, A DELAWARE CORPORATION, F/K/A/ VIACOM INC.,SUCCESSOR BY MERGER TO CBS CORPORATION, A PENNSYLVANIA CORPORATION, F/K/A WESTINGHOUSE ELECTRIC CORPORATION, CERTAINTEED CORPORATION, CLEAVER BROOKS COMPANY, INC, CRANE CO, CRANE CO. INDIVIDUALLY AND AS SUCCESSOR TO PACIFIC VALVES, CROSBY VALVE LLC,ELECTROLUX HOME PRODUCTS, INC. INDIVIDUALLY, AND AS SUCCESSOR TO TAPPAN AND COPES-VULCAN, FISHER CONTROL VALVES, FISHER CONTROLS INTERNATIONAL, LLC F/K/A FISHER CONTROLS CO., AS SUCCESSOR IN INTEREST TO FISHER GOVERNOR COMPANY, FLOWSERVE US, INC. INDIVIDUALLY AND SUCCESSOR TO ROCKWELL MANUFACTURING COMPANY, EDWARD VALVE, INC.,NORDSTROM DECISION + ORDER ON VALVES, INC., EDWARD VOGT VALVE COMPANY, AND MOTION VOGT VALVE COMPANY, FOSTER WHEELER, L.L.C, GENERAL ELECTRIC COMPANY, GOULDS PUMPS LLC,IMO INDUSTRIES, INC, LANDIS & GYR, INC, PFIZER, INC. (PFIZER), ROCKWE;LL AUTOMATION, INC., INDIVIDUALLY, AND AS SUCCESSOR TO ROCKWELL INTERNATIONAL CORP., NORTH AMERICAN ROCKWELL, AND ROCKWELL MANUFACTURING COMPANY, ROCKWELL AUTOMATION, INC.,AS SUCCESSOR IN INTEREST TO ALLEN~ BRADLEY COMPANY, LLC,U.S. RUBBER COMPANY (UNIROYAL), UNION CARBIDE CORPORATION, CONSOLIDATED EDISON COMPANY OF NEW YORK, INC.,COURTER & COMPANY INCORPORATED, INDUSTRIAL HOLDINGS CORPORATION INDIVIDUALLY AND AS SUCCESSOR IN INTEREST TO CARBORUNDUM, NORTON PACKO INDUSTRIAL CERAMICS, INC.,SAINT-GOBAIN ABRASIVES, INC.,INDIVIDUALLY, AND AS SUCCESSOR TO NORTON COMPANY,
Defendant.
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------------------------------------ -----------------X The following e-filed documents, listed by NYSCEF document number (Motion 002) 120, 121, 122, 123, 124, 125, 126, 127, 139, 140, 141, 142, 143, 144, 145, 146, 147, 148, 149, 150, 151, 152, 154, 156, 157, 162,163,164,165 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 granted for the reasons set
forth below.
Here, defendant Crosby Valve, LLC ("Crosby") moves to dismiss this action on the
grounds that plaintiff, John B. Daly, Jr. ("Mr. Daly") was not exposed to asbestos from any
Crosby product. See Memorandum of Law in Support of Crosby Valve, LLC's Motion for
Summary Judgment. In opposition, plaintiff highlights Mr. Daly's clear and unequivocal
testimony identifying Crosby as a manufacturer of valves containing asbestos-containing parts
during the course of his work as a Con Ed mechanic 1974-2012. See Affirmation in Opposition
to Defendant Crosby Valve, LLC's Motion for Summary Judgment.
Specifically, defendant Crosby's motion is based on Mr. Daly's testimony that he was
exposed to asbestos from "flange gaskets" used along with Crosby valves, and not actually
manufactured by Crosby. See Reply Memorandum of Law of Defendant Crosby Valve, LLC, In
Support of Motion for Summary Judgment, p. 3-4.
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". Winegradv New York
190297/2019 DALY, JR, JOHN B vs. AMCHEM PRODUCTS, INC., Page 2 of 5 Motion No. 002
2 of 5 [* 2] INDEX NO. 190297/2019 NYSCEF DOC. NO. 191 RECEIVED NYSCEF: 12/27/2023
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 ofNew 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 J.C. Duggan, Inc., 180 AD2d 579, st 580 (1 st Dep't 1992), citing Dauman Displays, Inc. v Masturzo, 168 AD2d 204 (1 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 (Pt Dep't 1995).
Ordinarily, the appropriate standard at summary judgment for moving defendant Crosby
in an asbestos action would be that of 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
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judgment. However, in the instant motion, defendant Crosby correctly identifies In re New York
City Asbestos Litigation (Dummitt), 27 NY3d 765, 799 (N.Y. 2016) as the standard governing
defendant's liability for solely a third-party product.
The Court finds that Mr. Daly's testimony does not indicate any products manufactured
by defendant Crosby, and that moving defendant has provided evidence that such gaskets were
not required by Crosby for the use of their valves. Plaintiffs exhibits have been identified as
largely withdrawn, irrelevant to Crosby as a manufacturer, or as containing no reference to the
asbestos-containing gaskets at issue herein. See Reply Memorandum of Law, supra, p. 6-8. As
.such, plaintiff has failed to raise an issue of fact sufficient to defeat summary judgment. Here,
· plaintiff has not provided sufficient evidence to demonstrate that defendant Crosby was actively
involved in the asbestos gaskets at issue herein or "substantially participated" in integrating such
gaskets with Crosby-manufactured valves. See Dummitt, supra.
Accordingly, it is
ORDERED that defendant Crosby's motion for summary judgment is granted; and it is
further
ORDERED that the complaint is dismissed in its entirety as against defendant Crosby
with costs and disbursements to said defendant as taxed b,Y the Clerk of the Court, and the Clerk
is directed to enter judgment accordingly in favor of said defendant; and it is further
ORDERED that the action is severed and continued against the remaining defendants;
and it is further
ORDERED that the caption be amended to reflect the dismissal and that all future papers
filed with the court bear the amended caption; and it is further
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ORDERED that within 30 days of entry defendant Crosby shall serve all parties with a
copy of this Decision/Order with notice of entry.
This constitutes the Decision/Order of the Court.
12/27/2023 DATE {Jl~ ADAM SILVERA, J.S.C.
CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION
APPLICATION:
CHECK IF APPROPRIATE: GRANTED .
SETTLE ORDER □ DENIED
INCLUDES TRANSFER/REASSIGN 8 GRANTED IN PART
SUBMIT ORDER
FIDUCIARY APPOINTMENT □ OTHER
□ REFERENCE
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