Gonder v. A.O. Smith Water Prods. Co.

2024 NY Slip Op 30491(U)

• Court: New York Supreme Court, New York County
• Decided: February 14, 2024
• Status: Unpublished

Opinion

Gonder v A.O. Smith Water Prods. Co. 2024 NY Slip Op 30491(U) February 14, 2024 Supreme Court, New York County Docket Number: Index No. 190322/2019 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. 190322/2019 NYSCEF DOC. NO. 583 RECEIVED NYSCEF: 02/14/2024

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY

PRESENT: HON. ADAM SILVERA PART 13 Justice --------X INDEX NO. 19032212019 BRYAN J GONDER, MOTION DATE NIA Plaintiff, MOTION SEQ. NO. 008 - V-

A.O. SMITH WATER PRODUCTS CO, ADH:NCE, INC.,FIK/A BMI, INC, AIR & LIQUID SYSTEMS CORPORATION, AS SUCCESSOR-BY-MERGER TO BUFFALO PUMPS, INC, AMCHEM PRODUCTS, INC., NIK/A RHONE POULENC AG COMPANY, NIK/A BAYER CROPSCIENCE INC, AMERICAN BILTRITE INC, ARMSTRONG INTERNATIONAL, INC, ATWOOD & MORRILL COMPANY, AURORA PUMP COMPANY, BMCE INC., FIK/A UNITED CENTRIFUGAL PUMP, BORDEN CHEMICAL, INC. P/K/A BORDEN, INC. PIK/A THE BORDEN COMPANY, INDIVIDUALLY AND AS SUCCESSOR-IN-INTEREST TO SMITH-DOUGLASS CO., INC, BORGWARNER MORSE TEC LLC,BURNHAM, LLC, INDIVIDUALLY, AND AS SUCCESSOR TO BURNHAM CORPORATION, BW/IP, INC. AND ITS WHOLLY OWNED SUBSIDIARIES, CARRIER CORPORATION, CATERPILLAR, INC, CBS CORPORATION, F/K/A VIACOM INC., SUCCESSOR BY MERGER TO CBS CORPORATION, F/K/A WESTINGHOUSE ELECTRIC CORPORATION, DECISION + ORDER ON CERTAINTEED CORPORATION, CLARK-RELIANCE MOTION CORPORATION, CLEAVER BROOKS COMPANY, INC, COURTER & COMPANY INCORPORATED, CRANE CO, CROSBY VALVE LLC,CUMMINS, INC, DOMCO PRODUCTS TEXAS, INC, EATON CORPORATION, INDIVIDUALLY AND AS SUCCESSOR -IN-INTEREST TO CUTLER-HAMMER, INC, ECOLAIRE INCORPORATED, ECR INTERNATIONAL, CORP., F/K/A DUNKIRK BOILERS AND UTICA BOILER COMPANY, ELECTROLUX HOME PRODUCTS, INC. INDIVIDUALLY, AND AS SUCCESSOR TO TAPPAN AND COPES-VULCAN, ELLIOTT COMPANY, EMPIRE-ACE INSULATION MFG. CORP, FEDERAL PUMP CORPORATION, FLOWSERVE US, INC. INDIVIDUALLY AND SUCCESSOR TO ROCKWELL MANUFACTURING COMPANY, EDWARD VALVE, INC.,NORDSTROM VALVES, INC., EDWARD VOGT VALVE COMPANY, AND VOGT VALVE COMPANY, FMC CORPORATION, ON BEHALF OF ITS FORMER CHICAGO PUMP & NORTHERN PUMP BUSINESSES, FOSTER WHEELER, L.L.C, FULTON BOILER WORKS, INC, GARDNER DENVER, INC, GENERAL ELECTRIC

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COMPANY, GOODYEAR CANADA, INC, GOULD ELECTRONICS INC, GOULDS PUMPS LLC,GRINNELL LLC,HONEYWELL INTERNATIONAL, INC., F/K/A ALLIED SIGNAL, INC. I BENDIX, IMO INDUSTRIES, INC, INTERNATIONAL PAPER COMPANY, INDIVIDUALLY AND AS SUCCESSOR TO CHAMPION INTERNATIONAL CORPORATION, AS SUCCESSOR TO UNITED STATES PLYWOOD CORPORATION, ITT LLC., INDIVIDUALLY AND AS SUCCESSOR TO BELL & GOSSETT AND AS SUCCESSOR TO KENNEDY VALVE MANUFACTURING CO., INC, J.H. FRANCE REFRACTORIES COMPANY, JENKINS BROS, KARNAK CORPORATION, KEELER-DORR-OLIVER BOILER COMPANY, KOHLER CO, MADSEN & HOWELL, INC, MARIO & DI BONO PLASTERING CO., INC, MILTON ROY COMPANY, MORSE DIESEL, INC, NAVISTAR, INC.,NK/A INTERNATIONAL TRUCK & ENGINE CORP. F/K/A INTERNATIONAL HARVESTER, INC, NIBCO INC, O'CONNOR CONSTRUCTORS, INC., F/K/A THOMAS O'CONNOR & CONNOR & CO., INC, PEERLESS INDUSTRIES, INC, PEERLESS PUMP COMPANY, INC, PFIZER, INC. (PFIZER), RELIANCE ELECTRIC COMPANY, RHEEM MANUFACTURING COMPANY, RILEY POWER INC, ROBERTSHAW CONTROLS COMPANY, INDIVIDUALLY AND AS SUCCESSOR TO FULTON SYLPHON COMPANY, ROCKWELL AUTOMATION, INC.,AS SUCCESSOR IN INTEREST TO ALLEN- BRADLEY COMPANY, LLC,SCHNEIDER ELECTRIC USA, INC. FORMERLY KNOWN AS SQUARED COMPANY, SEQUOIA VENTURES, INC., F/K/A BECHTEL CORPORATION, SPIRAX SARCO, INC. INDIVIDUALLY AND AS SUCCESSOR TO SARCO COMPANY, TACO, INC, THE GOODYEAR TIRE AND RUBBER COMPANY, TISHMAN LIQUIDATING CORP, TREADWELL CORPORATION, TYCO INTERNATIONAL (US) INC, U.S. RUBBER COMPANY (UNIROYAL), UNION CARBIDE CORPORATION, UNITED CONVEYOR CORPORATION, VELAN VALVE CORPORATION, WARREN PUMPS, LLC,WEIL-MCLAIN, A DIVISION OF THE MARLEY-WYLAIN COMPANY, A WHOLLY OWNED SUBSIDIARY OF THE MARLEY COMPANY, LLC,WEYERHAEUSER COMPANY, ZY-TECH GLOBAL INDUSTRIES, INC, CONSOLIDATED EDISON COMPANY OF NEW YORK, INC.,MINNESOTA MINING & MANUFACTURING COMPANY

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

The following e-filed documents, listed by NYSCEF document number (Motion 008) 421, 422, 423, 424, 425,426,427,428,429,430,431,432,433,434,492,493,494,495,496,497,498,499,500,501,502, 503,504,505,506,507,508,509,510,511,512,513,514,515,516,517,518,519,538,539,540,560 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 Jenkins Bros. ("Jenkins") moves for summary judgment to dismiss this

action on the grounds that plaintiff-decedent, John Gonder ("Mr. Gonder") did not identify

defendant Jenkins as a manufacturer of any asbestos-containing valves he was exposed to during

the course of his work as a Con Ed inspector from the l 970s- l 990s. Moving defendant's motion

rests entirely upon challenging plaintiff's evidence implicating defendant Jenkins as a

manufacturer in Mr. Gander's asbestos exposure. Moving defendant further argues that

plaintiff's expert reports are insufficient to establish causation. Plaintiff opposes on the basis of

external depositions in which Jenkins valves have been identified at Con Ed powerhouses,

including those that Mr. Gonder specifically worked at. See Affirmation in Opposition to

Defendant Jenkins' Motion for Summary Judgment, p. 4-6. Plaintiff also argues that conflicting

expert opinion should create issues of fact as to causation.

Defendant Jenkins replies, reiterating their argument that Mr. Gonder did not mention

Jenkins and that the depositions should not be considered and do not include sufficient details

connecting Mr. Gonder to Jenkins. Additionally, moving defendant reiterates that plaintiff's

expert evidence is insufficient to establish causation.

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

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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 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 (1s t Dep't 1995).

The appropriate standard at summary judgment for moving defendant Jenkins 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 NYSlipOp 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.

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Here, the Court notes that Mr. Gonder was deposed one year prior to his passing, in

January 2020, at the age of eighty-five. See Affirmation in Opposition, supra, p. 1 (Mr. Gonder

passed away in May 2021 from lung cancer at the age of eighty-six). Despite the extenuating

circumstances, Mr. Gonder provided clear and unequivocal details regarding his work history

from approximately forty-five years ago, including the locations of powerhouses he worked at,

what his role was, and which specific categories of products he was exposed to. Id. at p. 2-4. The

Appellate Division, First Department has affirmed denials of summary judgment in similar

instances. In Koulermos v A.O. Smith Water Prods., 137 AD3d 575,576 (1st Dep't 2016), the

court noted that defendant's "contention rested on evidence of plaintiffs inability to remember

precisely when he worked at the facility" and stated that "pointing to gaps in an opponent's

evidence is insufficient to demonstrate a movant's entitlement to summary judgment".

Moreover, the appellate court stated that the defendants affirmatively "failed to present

evidence ... [regarding] when their employees were present at the facility and whether or not

those employees used asbestos-containing products". Id. Similarly, the First Department noted in

Krok v AERCTO International, Inc., et. al, 146 AD3d 700, 700 (1st Dep't 2017) that "reliance on

the decedent's inability to identify its product as a source of his exposure to asbestos is

misplaced" and that "plaintiffs raised an issue of fact by submitting evidence that defendant's

asbestos-containing pumps were present on the ship to which the decedent was assigned as a

boiler tender fireman." See also Affirmation in Opposition, supra, p. 7-11. Plaintiffs have met

the standard set forth by the Appellate Division to sufficiently raise a question of fact. The

weight of the evidence is an issue for the trier of fact, but for purposes of summary judgment, the

depositions raise issues of fact.

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Further, defendant Jenkins makes no attempt to meet their initial burden on a motion for

summary judgment by proving that their products were not located at any of Mr. Gonder's

worksites or that they did not contain asbestos. Thus, moving defendant has failed to "establish

that its products could not have contributed to the causation of plaintiffs injury." Reid v

Georgia-Pacific Corp., supra. Regarding causation, plaintiff has proffered a conflicting expert

opinion regarding Mr. Gonder's exposure history sufficient to raise issues of fact regarding

causation. See Affirmation in Opposition, supra, Exh. 2.

As conflicting evidence has been presented herein, and a reasonable juror could decide

that Mr. Gonder was exposed to asbestos-containing valves manufactured by defendant Jenkins

from his work at various Con Ed powerhouses, and that such exposure could have contributed to

his fatal illness, sufficient issues of fact exist to preclude summary judgment.

Accordingly, it is

ORDERED that defendant Jenkins' 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

Decision/Order with notice of entry.

This constitutes the Decision/Order of the Court.

02/14/2024 DATE ADAM SILVERA, J.S.C.

~ CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION

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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