DeFILIPPIS v. A.O. SMITH WATER PRODUCTS CO.

DECISION & ORDER

SHERRY KLEIN HEITLER, Judge:

In this asbestos personal injury action, defendant Tishman Liquidating Corporation, Inc. ("Tishman")1 moves pursuant to CPLR 3212 for summary judgment dismissing the complaint and all cross-claims asserted against it. For the reasons set forth below, the motion is denied.

BACKGROUND

Plaintiffs Francis DeFilippis and Dorothy DeFilippis commenced this action on or about March 12, 2003 to recover for personal injuries caused by Mr. DeFilippis' exposure to asbestos. Mr. DeFilippis was deposed over the course of three days from July 24, 2012 to July 26, 2012.2 He testified that he worked as an ironworker at various sites throughout New York City and Long Island from 1953 to 1999 including powerhouses, airports, and hospitals. Among other construction sites, Mr. DeFilippis testified that he worked at Fordham University in the Bronx where he worked with welding rods, and the CBS Staging Warehouse in Manhattan where he hung cradles to reinforce the ceiling, among other things.

On this motion for summary judgment Tishman asserts that Mr. DeFilippis could not positively identify Tishman as the general contractor at any of the locations at which he worked throughout his career. Tishman also asserts that even if it had been the general contractor at any of the sites at issue, there is no evidence that it directed, supervised, or controlled any of Mr. DeFilippis' work as to render it liable under New York's Labor Law. Plaintiffs argue that Mr. DeFilippis' identification of Tishman as the general contractor that oversaw and directed his work on a number of jobs raises a material issue of fact regarding Tishman's liability sufficient to preclude summary judgment.

DISCUSSION

Summary judgement is a drastic remedy that must not be granted if there is any doubt about the existence of a triable issue of fact. Tronlone v Lac d'Aminante du Quebec, Ltee, 297 A.D.2d 528, 528-529 (1st Dept 1995). A party moving for summary judgment must demonstrate the absence of any material issue of fact to be granted judgment as a matter of law. Zuckerman v City of New York, 49 N.Y.2d 557, 562 (1980). Should a moving defendant make a prima facie showing of entitlement to summary judgment, the plaintiff must then show there exists a triable issue of fact. See id. In asbestos-related litigation, it is sufficient if the plaintiff shows facts and conditions from which the defendant's liability may be reasonably inferred. See Reid v Georgia Pacific Corp. 212 A.D.2d 462, 463 (1st Dept 1995).

Tishman argues that plaintiffs have not demonstrated that Tishman was the general contractor at any of Mr. DeFilippis' work sites. But Tishman overlooks that Mr. DeFilippis testified to his belief that, as two examples, Tishman was the general contractor at Fordham University and the CBS Staging Warehouse (Deposition pp. 275, 277, 78):

Tishman relies on Mr. DeFilippis' testimony on later cross-examination to argue that he does not actually recall who the general contractors were at these sites (Deposition pp. 472, 473, 469, 470) objections omitted):

The court's function on a motion for summary judgment is not to determine a witness' credibility, but to determine whether there exist factual issues that require resolution at trial. See Ferrante v American Lung Ass`n, 90 N.Y.2d 623, 631 (1997); see also Dollas v W.R. Grace & Co., 225 A.D.2d 319, 321 (1st Dept 1996) ("The assessment of the value of a witnesses' testimony constitutes an issue for resolution by the trier of fact...."). That Mr. DeFilippis' testimony may contain discrepancies goes only to the weight of such testimony and not to its admissibility. Dollas, supra. For purposes of this motion, therefore, Mr. DeFilippis' testimony is sufficient to raise material issues for the trier of fact that Tishman acted as general contractor at the relevant sites, and in this regard Tishman's motion is denied.

However, that Tishman may have been the general contractor at these sites does not automatically render it liable under Labor Law § 2003, which codifies the common-law duty imposed on an owner or general contractor to provide construction workers with a safe place to work. See Nevins v Essex Owners Corp., 276 A.D.2d 315 (1st Dept 2000). Liability under § 200 is limited to parties who "exercise[] direct supervisory control over the manner in which the activity alleged to have caused the injury was performed" (Burkoski v Structure Tone, Inc., 40 A.D.3d 378, 380-81 [1st Dept 2007]), or who create or have actual or constructive notice of an unsafe condition which causes the injury (see Comes v New York State Electric & Gas Corp., 82 N.Y.2d 876, 877 [1993]). In this regard, plaintiffs must show that Tishman had the "authority to control the activity bringing about the injury to enable it to avoid or correct an unsafe condition" (Russin v Picciano & Son, 54 N.Y.2d 311, 317 [1981]), or that Tishman had actual or constructive notice of the defective condition that caused the injury (see LaRose v Resinick Eighth Ave. Assoc., LLC, 26 A.D.3d 470, 471 [2nd Dept 2006]; see also Comes, supra, at 878).

Mr. DeFilippis was questioned in detail about the role that general contractors played at his job sites. He responded, in relevant part, as follows (Deposition, pp. 644-648, objections omitted):

This testimony raises the issue of Tishman's authority to supervise and control the conditions which plaintiffs allege caused Mr. DeFilippis' injuries, and, at the very least, it raises the issue of Tishman's notice thereof. Therefore, with regard to whether Tishman is liable under Labor Law § 200, this motion is similarly denied.

Accordingly, it is hereby

ORDERED that Tishman Liquidating Corporation, Inc.'s motion for summary judgment is denied in its entirety.

This constitutes the decision and order of the court.