NYCAL Update

February 18, 2014

As of late, there have been a number of New York City Asbestos Litigation (“NYCAL”) related cases wherein defendants have been denied summary judgment in cases involving defendants whom have claimed to have not manufactured the type of product identified by plaintiff.  As an example, in Cantolino v. A.O. Smith, et al (Index No. 190211/12), defendant Baxter Healthcare (“Scientific Products”) moved for summary judgment based upon several grounds, one being it did not manufacture many of the products identified by plaintiff. In support of this contention, Scientific Products submitted the affidavit of a corporate representative who had reviewed the company’s catalogs.  The court, however, noted that defendant did not submit any of the documents upon which the affiant based his statements.  Notably, in a footnote, the court stated “As this court has held many times, unsupported and uncross-examined statements by a corporate representative are generally insufficient to form the basis of a summary judgment motion.” See Zuckerman v. City of NY, 49 NY2d 557 (1980), Republic Nat. Bank of NY v. Luis Winston, Inc.,107 AD2d 581 (1st Dep’t 1985).

Due to the court’s trend in denying motions supported solely by corporate representative affidavits, it became apparent the court expected movants to submit underlying documents (catalogues, marketing materials, MSDS sheets, etc) along with corporate representative testimony to support their motions. As a result, a number of defendants began doing so.  In response to these revamped efforts, the court has now begun to further discredit defendant’s supporting materials. As an example, Justice Heitler recently denied defendant Rheem’s motion for summary judgment in the Zimmerman matter. During his deposition, Plaintiff identified Rheem water heaters as a source of his exposure to asbestos. Rheem argued the insulation associated with the water heaters was fiberglass, and not asbestos.  In support of its motion, Rheem submitted the affidavit of a corporate representative whose conclusions were supported by two (2) catalogs. The court held, the catalogs were undated and, as such “would only invite speculation” to assume the water heaters depicted in the catalogs were the same as identified by plaintiff. Further, it was “questionable” whether the catalogs represented “the totality” of Rheem’s water heaters available during the course of plaintiff’s career.

Fortunately, Justice Heitler has continued somewhat of a trend of granting summary judgment to non-product defendants (i.e. contractors).  In Dolan v A.O. Smith, et al, plaintiff identified Gerosa, represented by McGivney & Kluger, as a contractor that removed and transported transformers to his Con Edison repair shop from 1963 through 1979. Plaintiff claimed he was exposed to asbestos from Gerosa employees who brushed dust and debris off the top of the transformers while rigging for removal. Plaintiff’s counsel failed to address any duty to warn issues and instead argued Gerosa breached its duty of care. In this regard, plaintiff’s counsel Wilentz Goldman reasoned that Gerosa assumed a duty of care to third persons from Con Edison.  Counsel further argued, citing to a lead poisoning case, Gerosa exacerbated a dangerous condition.  The court held that Gerosa “only provided rigging and transportation services, nothing more.”  Further, Gerosa’s actions "had nothing to do with” the installation, removal or application of asbestos.  As such, Gerosa’s actions cannot be said to have created or exacerbated a dangerous condition.  More importantly, the court noted “mere disturbance of dust that had settled on surfaces….cannot render Gerosa liable for plaintiff’s exposures.” Id.

On the trial judge front, there have been some significant changes.  Justice Heitler announced that Justice Silver will no longer be assigned new asbestos trials.  However, Justice Silver will finish the cases already assigned to his courtroom.  As you may recall, Justice Silver was first anointed as an asbestos trial judge in early 2013.

In addition, Justice Saliann Scarpulla will no longer receive asbestos cases for trial.  As with Justice Silver, Justice Scarpulla will continue her current case assignments until final disposition.  Lastly, Justice Cynthia S. Kern has been designated as a new asbestos trial judge in the NYCAL.  Justice Kern was elected to the Civil Court bench in 1999 and has resided over both criminal and civil cases.  Immediately prior to being elected as a Civil Court Judge, she spent eight (8) years working as the principal law clerk for Supreme Court Justice Joan B. Lobis.  Prior to working with Judge Lobis, she spent over six (6) years working as a litigator in the state and federal courts.  She received her law degree cum laude from New York University School of Law in 1985, graduating order of the coif.  Justice Kern has been extensively involved in bar association activities and community activities during her legal career, including a year as the president of the Lesbian and Gay Law Association of Greater New York.  Justice Kern has no prior asbestos-related experience.