Matter of New York City Asbestos Litig.

2017 NY Slip Op 6982, 154 A.D.3d 441, 60 N.Y.S.3d 822, 2017 WL 4413042, 2017 N.Y. App. Div. LEXIS 7074

Opinion

Judgment, Supreme Court, New York County (Cynthia S. Kern, J.), entered September 13, 2016, after a jury trial, awarding plaintiff $5 million for past pain and suffering and $4 million for future pain and suffering, unanimously affirmed, without costs.

In this asbestos litigation arising from plaintiff’s use of a grinder manufactured and designed by defendant Hennessy Industries’ subsidiary, Ammco, plaintiff’s expert testimony was sufficient to establish that plaintiff’s use of that grinder on automobile brake linings caused his exposure to asbestos dust in sufficient quantities to cause his mesothelioma (see Sean R. v BMW of N. Am., LLC, 26 NY3d 801, 808 [2016]; cf. Matter of New York City Asbestos Litig., 148 AD3d 233, 236 [1st Dept 2017]). Moreover, because the asbestos-laden dust was created by plaintiff’s use of defendant’s grinder and defendant knew its grinder would be used on asbestos-containing products, defendant had a duty to warn plaintiff of the latent danger arising from the foreseeable use of its product (see e.g. Rastelli v Goodyear Tire & Rubber Co., 79 NY2d 289, 297 [1992]).

We find the damages award, as reduced by the trial court and stipulated to by plaintiff, to be appropriate. Moreover, based on the evidence adduced at trial, the jury properly apportioned 86% of the fault to defendant (see CPLR art 16).

We have considered defendant’s remaining arguments and find them unavailing.

Concur — Acosta, P.J., Renwick, Webber, Oing and Moulton, JJ.