FERNANDEZ v. A.C. AND S., INC.

DECISION AND ORDER

SHERRY KLEIN HEITLER, Judge.

It is ordered that this motion is decided in accordance with the memorandum decision dated 7-22-13.

In this asbestos personal injury action, defendant Courter & Company, Inc. ("Courter") moves pursuant to CPLR 3212 for summary judgment dismissing the complaint and all cross-claims asserted against it on the ground that there is no evidence to show that plaintiffs' decedent Alberto Fernandez was exposed to asbestos from work performed by Courter employees.

Mr. Fernandez was born in Cuba in 1939 and immigrated to the United States in 1962. From 1966 to 1969 he worked for Consolidated Edison ("Con Ed") as a general utility man and as a mechanic B. Mr. Fernandez and his wife Aleida Fernandez commenced this action on October 14, 2011 to recover for injuries caused by Mr. Fernandez' exposure to asbestos during this time period. Mr. Fernandez was deposed on December 2, 2011, December 5, 2011, and December 8, 2011 ("Deposition").1

Mr. Fernandez testified that he personally performed maintenance work on switches, breakers, and other electrical equipment at Con Ed's Ravenswood Powerhouse and that such work exposed him to asbestos fibers. Mr. Fernandez further testified that other trades not employed by Con Ed maintained the various "units" at Con Ed's Ravenswood Powerhouse in his presence. These units consisted of boilers, turbines, pipes and other types of equipment.

Courter argues that plaintiffs' claims against it are speculative because there is nothing to show that the other trades that worked in Mr. Fernandez' vicinity were Courter employees or that such trades exposed Mr. Fernandez to asbestos. Plaintiffs oppose on the ground that Con Ed contracted with Courter to install the insulation and pipe work associated with Ravenswood's main boiler during the time frame that Mr. Fernandez worked as a general utility man and mechanic B for Con Ed and that his testimony of the maintenance workers he encountered raises a material issue of fact whether he was exposed to asbestos as a bystander from such work.

To obtain summary judgment, the movant must establish its cause of action or defense sufficiently to warrant a court's directing judgment in its favor as a matter of law, and must tender sufficient evidence to demonstrate the absence of any material issue of fact. Zuckerman v City of New York, 49 N.Y.2d 557, 562 (1980). In asbestos-related litigation, should the moving defendant make a prima facie showing of entitlement to judgment as a matter of law, the plaintiff must then demonstrate that there was actual exposure to asbestos fibers released from the defendant's product. Cawein v Flintkote Co., 203 A.D.2d 105, 106 (1st Dept 1994). In this regard, it is sufficient for the plaintiff to show facts and conditions from which the defendant's liability may be reasonably inferred. Reid v Georgia Pacific Corp., 212 A.D.2d 462, 463 (1st Dept 1995). The identity of a manufacturer of a defective product may be established by circumstantial evidence but such evidence cannot be speculative or conjectural. See Healey v Firestone Tire & Rubber Co., 87 N.Y.2d 596, 601 (1996).

Plaintiffs' documentary submissions show that in 1965 Courter began to furnish and supervise the labor, materials, and equipment for the initial construction of Ravenswood's main steam boiler and was contracted to install numerous piping systems associated with Ravenswood's Unit # 3 (plaintiffs' exhibits 4 & 5).2 Mr. Fernandez, on the other hand, testified that he observed others performing maintenance and repair work at that location (Deposition pp. 228-229, 490, 493-94, objections omitted):

Significantly, Mr. Fernandez could not say who employed the workers at the Ravenswood facility that maintained the main boiler at that location, what work they were doing, where the dust came from, or whether such dust contained asbestos. Thus, even if this court were to assume, arguendo, that such work was performed by Courter employees, there is no evidence to show that it contributed to Mr. Fernandez' asbestos exposure. See Cawein, supra.

Accordingly, it is hereby

ORDERED that Courter & Company, Inc.'s motion for summary judgment is granted, and this action and any cross-claims against Courter are severed and dismissed in their entirety; and it is further

ORDERED that the remainder of the action shall continue as against the remaining defendants; and it is further

ORDERED that the Clerk is directed to enter judgment accordingly.

This constitutes the decision and order of the Court.