Opinion
Index No. 127988/02 Motion Scq. 002
08-16-2011
LOUISE DEFAZIO, as Executrix for the Estate of SAMUEL DEFAZIO, Deceased, Plaintiff, v. A.W. CHESTERTON, et al., Defendants.
DECISION AND ORDER
SHERRY KLEIN HEITLER , J.:
Defendant Crane Co. moves pursuant to CPLR § 3212 for summary judgment dismissing the complaint and all cross-claims asserted against it based on any claim that Crane Co. is liable for products that it did not manufacture, supply or specify for use with its valves. For the following reasons, the motion is denied.
This asbestos personal injury action was commenced in December of 2002 by Louise Defazio, as Executrix for the Estate of Samuel Dcfazio, deceased, to recover for injuries allegedly caused by Samuel Dcfazio's exposure to asbestos-containing products. Mr. Defazio died on March 30, 2001 at the age of 55 as a result of malignant mesothelioma. In November, 2008 this case was included in the court's February, 2010 trial cluster for asbestos related cases.
The deposition of Robert F. Tortorete, Mr. Defazio's former co-worker, was taken on October 21, 2009. A copy of his deposition transcript is submitted as defendant's Exhibit C. Mr. Tortorete's deposition focused on Mr. Defazio's alleged exposure to asbestos between 1961 and 1964 during his employment with Defazio Plumbing & Heating, a business owned and operated by Mr. DeFazio's father. Mr. Tortorete testified that Mr. Defazio was exposed to asbestos in connection with work he performed on valves, pipes, pumps, and automobiles at various sites in the Sharpsburg and Etna, Pennsylvania areas. IIe testified that Mr. Defazio was exposed to asbestos-containing packing and insulation that was used in conjunction with Crane Co. valves.
Crane Co. docs not dispute that Mr. Defazio worked with its valves over the course of his employment with Defazio Plumbing & Heating, or that he was exposed to asbestos in connection with such employment. Instead, Crane Co. argues that its valves were made of steel, bronze and/or other metals which did not contain asbestos, and that it did not manufacture or supply any of the asbestos-containing products to which Mr. Defazio may have been exposed. In this regard, Crane Co. contends that it had no duty to warn of the hazards associated with those asbestos-containing products which were incorporated into its valves not by it, but by the post-sale users thereof, which include gaskets, packing, cement and external insulation. In opposition, plaintiff asserts that Crane Co. had a duty to warn of the hazards associated with asbestos because it knew, recommended, endorsed, and specified that its valves should integrate and be insulated with asbestos-containing materials.
Summary judgment 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 'Aminate du Quebec, Ltee, 297 AD2d 528, 528-29 (1 st Dept 2002); Reid v Georgia Pacific Corp., 212 AD2d 462, 462 (1st Dept 1995). To obtain summary judgment, a movant must establish its cause of action or defense sufficiently to warrant judgment in its favor as a matter of law, and must tender sufficient evidence to demonstrate the absence of any material issues of fact. Zuckerman v City of New York, 49 NY2d 557, 562 (1980); CPLR 3212(b).
A plaintiff "may recover in strict products liability or negligence when a manufacturer fails to provide adequate warnings regarding the use of its product." Rastelli v Goodyear Tire & Rubber Co., 79 NY2d 289, 297 (1992); see also Voss v Black & Decker Mfg. Co., 59 NY2d 102, 106 (1983). A manufacturer "has a duty to warn against latent dangers resulting from foreseeable uses of its product of which it knew or should have known." Liriano v I lobar t Corp., 92 NY2d 232, 237 (1998); see also Rogers v Sears, Roebuck A Co., 268 AD2d 245 (1st Dept 2000); Baum v Eco-fec, Inc., 5 AD3d 842 (3d Dept 2004). Although a product may "be reasonably safe when manufactured and sold and involve no then known risks of which warning need be given, risks thereafter revealed by user operation and brought to the attention of the manufacturer or vendor may impose upon one or both a duty to warn." Cover v Cohen, 61 NY2d 261, 275 (1984). The existence and scope of an alleged tortfeasor's duty is a legal question to be determined by the trial court. Di Ponzio v Riordan, 89 NY2d 578, 583 (1997); Lynfatt v Escobar, 71 AD3d 743, 744 (2d Dept 2010).
Under authority of Rastelli v Goodyear Tire & Rubber Co., supra, 79 NY2d 289, defendant argues that it is not legally responsible for any gaskets, packing, or insulation applied by third parties to Crane Co. valves post-sale, and urges this court to apply the holding in Rastelli, supra, to relieve it from liability for those asbestos-containing parts introduced by others into its product, which it neither manufactured nor supplied for use with its valves, and which it did not direct or advise its customers to use. In Rastelli, supra, the Court of Appeals declined to hold a tire manufacturer liable for injuries that resulted from a defective rim manufactured by and installed on its tires by third parties. The Court held that the tire manufacturer "had no duty to warn about the use of its lire with potentially dangerous multipicce rims produced by another" where it "did not contribute to the alleged defect in a product, had no control over it, and did not produce it." Id. at 298. The Court reasoned that the tire manufacturer "had no role in placing that rim in the stream of commerce, and derived no benefit from its sale." Id.
Plaintiff's position is that defendant Crane Co. knew or should have known that asbestos-containing components would indeed be integrated with its valves for their intended use. In this regard, plaintiff submits record evidence of Crane Co.'s admission that certain of its valves contained asbestos gaskets and packing into the 198()'s, and its identification of high quality asbestos packing as an original component of some valves. Significantly, Crane Co. rebranded sheet packing and/or gasket material manufactured by other companies as "Cranitc," consisting of an asbestos composition "unhesitatingly recommended for a multitude of services" (plaintiff's Exh. H) for its customers' benefit in replacing gaskets, and the like. Crane Co. also sold a myriad of other asbestos-containing products, including insulation, millboard, paper, roll board and cements, many of which were recommended in a Crane Co. catalogue for use in high-temperature applications of its product (see, plaintiff's Exhs. F, H, M).
Plaintiff thus argues that Berkowitz v A.C. & S., Inc., 288 AD2d 148 (1 st Dept 2001) controls. In Derkowilz, supra, the First Department held that a pump manufacturer could be held liable for asbestos-containing insulation manufactured and installed by third parties post-sale where the manufacturer knew that asbestos-containing insulation ought to be or would be used with its pumps. The Berkowitz court opined that while the defendant's pumps might be able to run without insulation, at the very least it was questionable whether pumps used to transport steam and hot liquids could be operated safely on board ships without insulation, which the defendant knew would be made from asbestos, giving rise to the question whether there was a duty to warn. Cf., Perm v Jams, Baum & Bolles, et ai, 25 AD3d 402 (1 st Dept 2006).
This court has previously addressed near-identical issues in its recent decision in Sawyer v. A.C.&S, Inc., (Sup Ct, NY County, June 24, 2011, IIcitler, J., Index No. 111152/99); NYU, July 25, 2011, p. 17, col 2. Here, as in Sawyer, supra, this court finds that Rastelli and Berkowitz are not in conflict. As Judge Gwin so perceptively explained in Curry v American Standard, et al, 201 US Dist LEXIS 142496, at *2 ([SDNY Dec. 6, 2010, Gwin J), "these divergent holdings [rest] on consistent applications] of the same forsceability principle" whereby "a manufacturer's liability for third party component parts must be determined by the degree to which injury from the component parts is forsceable to the manufacturer." Id; see also, liriano v Hobart Corp., supra, 92 NY2d 232.
Rastelli and Berkowitz address two different situations. In Rastelli, it was found there was no duty to warn because the combination of a manufacturer's own sound product with another defective product somewhere in the stream of commerce not contemplated by the manufacturer was too attenuated to impose such a duty. In upholding the trial court's denial of summary judgment to a pump manufacturer in Berkowitz, however, the First Department addressed the situation where a manufacturer knew or should have known that its product would likely be combined with an inherently defective material for its intended use, and opined that in such a case there is a duty to warn. The Curry court applied Berkowitz and denied Crane Co.'s motion for summary judgment because, among other things: (1) expert testimony suggested that it was nonnal industry practice for Crane Co. valves to be insulated with asbestos; (2) flange gaskets used to connect Crane Co. valves to other equipment ordinarily contained asbestos; and (3) Crane Co.'s own product catalog listed asbestos-containing insulating materials approved for use with its valves.
Defendant argues that it did not direct its customers to use any type of replacement seal or insulation, that it had no control over whether its valves were insulated with asbestos-containing or non-asbestos-containing products, and that whether or not to insulate its products was a decision made not by it, but by the owner of the valves. But the record here demonstrates that Crane Co. knew or should have known of the hazards associated with asbestos, and that for most high temperature applications its valves would be insulated with same, As set forth above, the submissions on this motion show that Crane Co. designed and supplied its products with asbestos-containing gaskets and packing. It advertised other asbestos products, including cement and insulation. And Crane Co.'s corporate drawings for its valves identify "deep stuffing boxes filled with high quality asbestos packing" as original components. (Plaintiff's Exh. C). It is in this regard that Crane Co. knew or should have known that the asbestos-containing components in its valves would be replaced with other asbestos-containing components.
The court is not persuaded by Crane Co.'s urging that out-of-state precedents be followed; it is New York law that controls. In Liriano v Hohart Corp., supra, 92 NY2d 232, 237 the Court of Appeals was clear that "[a] manufacturer has a duty to warn against latent dangers resulting from foreseeable uses of its products of which it knew or should have known." As set forth above, a near identical motion for summary judgment made by Crane Co. was decided by this court in Sawyer v A.C.&S., Inc., supra. In Sawyer, supra, this court assessed Crane Co.'s duty to warn and concluded, under controlling authority of Berkowilz v A.C.&S., Inc., supra, that summary judgment must be denied. Similarly, on the proofs submitted herein, Crane Co.'s bald assertions that its valves did not require asbestos-containing insulation to operate properly and that it did not specify the use of insulation on its valves are insufficient to shield it from liability. Accordingly, the motion at bar is denied for the same reasons as and in similar language to Sawyer, supra, and it is hereby
ORDERED, that Crane Co's motion for summary judgment is denied in its entirety.
This constitutes the decision and order of the court.
SHERRY KLEIN HEITLER
J.S.C.