Desiena v. Aerco Intl. Inc.

2023 NY Slip Op 34540

Opinion

Desiena v Aerco Intl. Inc. 2023 NY Slip Op 34540(U) December 27, 2023 Supreme Court, New York County Docket Number: Index No. 190459/2018 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. 190459/2018 NYSCEF DOC. NO. 405 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. 190459/2018 RAYMOND DESIENA, MOTION DATE 10/10/2023 Plaintiff, MOTION SEQ. NO. 002 -v- AERCO INTERNATIONAL INC.,BMCE, INC.,IN ITSELF AND AS SUCCESSOR TO UNITED CENTRIFUGAL PUMP CO., CARLISLE INDUSTRIAL BRAKE & FRICTION, INC.,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, CERTAIN-TEED CORPORATION, CRANE CO., DURR MEGTEC, LLC,EATON CORPORATION AS SUCCESSOR-IN-INTEREST TO EATON ELECTRICAL INC. AND CUTLER-HAMMER INC.,ETHYL CORPORATION, FOSTER WHEELER ENERGY CORPORATION, GENERAL ELECTRIC COMPANY, GOSS INTERNATIONAL CORPORATION, HARRIS CORPORATION, HEIDELBERG USA, DECISION + ORDER ON INC.,INDUSTRIAL HOLDINGS CORPORATION F/K/A THE CARBORUNDUM COMPANY, INGERSOLL-RAND MOTION COMPANY, INTERNATIONAL PAPER COMPANY, JOHN CRANE INC.,KELSEY-HAYES COMPANY, MANROLAND GOSS WEB SYSTEMS AMERICAS LLC,METROPOLITAN LIFE INSURANCE COMPANY, MONTALVO CORPORATION, NEXEN GROUP, INC.,INDIVIDUALLY AND AS SUCCESSOR-IN-INTEREST TO HORTON MANUFACTURING COMPANY, INC.,ROCKWELL AUTOMATION INC.,INDIVIDUALLY AND AS SUCCESSOR-IN-INTEREST TO ALLEN BRADLEY COMPANY, SCHNEIDER ELECTRIC (USA), INC.,F/K/A SQUARE D COMPANY, UNION CARBIDE CORPORATION, WARNER ELECTRIC LLC,JOHN DOE 1 THROUGH JOHN DOE 75 (FICTITIOUS)

Defendant. -----------X

The following e-filed documents, listed by NYSCEF document number (Motion 002) 124, 125, 126, 127, 128,129,130,131,132,134,282,309,310,311,312,313,314,315,316,317,362,363 were read on this motion to/for SUMMARY JUDGMENT(AFTER JOINDER

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Upon the foregoing documents, it is ordered that the instant motion for summary

judgment seeking dismissal of this action, pursuant to CPLR §3212, is denied for the reasons set

forth below.

Here, defendant Heidelberg USA, Inc. moves for summary judgment to dismiss this

action on the grounds that plaintiff-decedent, Raymond Desiena ("Mr. Desiena") did not

establish exposure to asbestos from his work on Heidelberg-brand printing presses as an operator

and pressman on printing presses from approximately the mid-1960s-1980s. See Defendant

Heidelberg USA, Inc.'s Memorandum of Law in Support of its Motion for Summary Judgment,

p. 2.

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 oflaw. 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 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-

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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).

The appropriate standard at summary judgment for moving defendant Heidelberg 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.

Here, moving defendant's motion relies primarily upon challenging Mr. Desiena's

testimony as insufficient to identify asbestos exposure from Heidelberg printing presses, along

with the affidavit of their corporate representative, Shawn McDougall. See id. at p. 5-6. Mr.

McDougall's affidavit states generally, based upon his personal knowledge and review of

company records, that "no Heidelberg offset presses or related equipment as manufactured and

sold incorporated asbestos or asbestos-containing components of any kind" including "the brake

mechanisms" as identified by Mr. Desiena. See Notice of Motion, Affidavit of Shawn

McDougall, dated March 18, 2020, p. 1-2. Mr. McDougall was not employed at Heidelberg

during the period of Mr. Desiena's exposure alleged herein. However, Mr. McDougall alleges

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I that he has personal knowledge based upon his deposition, at which he testified to his familiarity

with Heidelberg printing presses manufactured from approximately the mid-1970s onwards. See

Affirmation in Support of Plaintiffs Opposition to Defendant Heidelberg USA; Inc.' s Motion for

Summary Judgment.,_ Exh. 5, Deposition of Shawn McDougall, dated January 21, 2021, p. 51-55.

Mr. McDougall stated in the affirmative that he does not possess personal knowledge regarding

the machines Mr. Desiena may have been working with in the 1960s and early 1970s that would

have been manufactured prior to the period of Mr. McDougall's familiarity with Heidelberg

presses, other than the K-Line machines. Therefore, Mr. McDougall's opinion on the earlier

printing presses at issue herein is primarily based upon company record information that

defendant Heidelberg does not describe or include in the instant motion. See id. at p. 56, ln.15-

57, ln. 9. The Court cannot evaluate any evidence that is not included, and a general denial

without much more is insufficient to meet moving defendant's burden under Dyer.

In opposition, plaintiff highlights Mr. Desiena's clear and unequivocal testimony

identifying Heidelberg printing presses at various worksites with numerous specifics. See

Affirmation in Support of Plaintiffs Opposition, supra, Exh. 2, Deposition of Raymond Desiena,

Volume III, dated February 28, 2019, p. 514, ln. 9-25. Defendant Heidelberg attempts to simplify

Mr. Desiena's testimony as solely describing "dust" but Mr. Desiena clearly explained his

extensive work experience, his familiarity with various printing press parts and the brands that

manufactured them, where and why and how many times he encountered such parts while

working specifically on Heidelberg presses, and why he believed that they contained asbestos.

See id., Deposition of Raymond Desiena, Volume VIII, dated April 4, 2019, p. 1109-1111. ·

Defendant Heidelberg replies, re-emphasizing Mr. McDougall's affidavit, which has been

. addressed above. See Defendant Heidelberg USA, Inc.'s Reply Memorandum of Law in Further

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Support of its Motion for Summary Judgment, p. 2. Mr. McDougall's testimony was far from

definitive. He confirmed multiple times at deposition that he had no knowledge of machines

from the 1960s, and stated in fact, that defendant Heidelberg's corporate policy for document

retention would not stretch back into the period of Mr. Desiena's exposure. See Affirmation in ' Support of Plaintiff's Opposition, supra, Exh. 5, Deposition of Shawn McDougall, dated January

21, 2021, p. 41-44 (describing personal experience); 61 (describing document retention policy).

Defendant's reply further highlights the testimony of Robert Petkash, corporate representative

for co-defendant in the instant matter, identified by Mr. Desiena as a manufacturer of asbestos-

containing printing press brakes. See Defendant Heidelberg USA, Inc.'s Reply Memorandum of

Law in Further Support of its Motion for Summary Judgment, p. 5. However, Mr. Petkash

established not only that some Airflex parts as identified by Mr. Desiena contained asbestos, but

also that direct sales were not the only way those parts were distributed to companies such as

defendant Heidelberg. See Affirmation in Support of Plaintiff's Opposition, supra, Exh. 3,

Deposition of Robert Petkash, dated February 23, 2021, p. 46-48 ("[i[t's possible" that Airflex

brakes were used as replacement parts on several printing presses, including Heidelberg); p. 56-

58 (confirming asbestos in certain Airflex brakes and describing packaging).

Defendant Heidelberg fails to establish their prima facie case, and plaintiff further

presents clear. contradicting testimony.

Accordingly, it is

ORDERED that defendant Heidelberg's motion for summary judgment is denied in its

entirety; and it is further

ORDERED that within 30 days of entry plaintiff shall serve all parties with a copy of this

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Decision/Order with notice of entry.

This constitutes the Decision/Order of the Court.

12/27/2023 DATE ADAM SILVERA, J.S.C.

~ CHECK ONE: CASE DISPOSED NON-FINAL mSPOSITION

GRANTED 0 DENIED GRANTED IN PART □ OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER

CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE

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