United States District Court, Southern District of New York
February 1, 1991
IN RE JOINT EASTERN AND SOUTHERN DISTRICT ASBESTOS LITIGATION. THIS DOCUMENT RELATES TO JOHN MAIORANA.
The opinion of the court was delivered by: Sweet, District Judge.
Defendants Owens-Corning Fiberglass Corporation ("OCF") and
United States Mineral Products Company ("USMP") in this
asbestos litigation move for partial summary judgment
dismissing the wrongful death claims of plaintiff Arlene
Maiorana ("Maiorana") as time-barred. For the following
reasons, the motion is granted.
Maiorana is the widow of John Maiorana, a sheetmetal worker
who died of colon cancer on June 16, 1983. She asserts that
her husband's cancer was caused by his exposure to asbestos
and asbestos-containing products during his construction
The defendants are manufacturers of various
asbestos-containing products to which Mr. Maiorana is alleged
to have been exposed.
This case was originally filed on July 28, 1987 as part of
a case brought by sixteen plaintiffs on behalf of themselves
and their deceased spouses, Meilinger v. National Gypsum Co.,
No. 87 Civ. 5188 (S.D.N.Y. filed July 28, 1987). In that
complaint, each plaintiff alleged a claim for wrongful death
and survival benefits and a claim for loss of services and
consortium, and sought punitive damages against the defendants.
In May 1988, Maiorana's claims were separated from those of the
other widows and filed as an independent case, Maiorana v.
National Gypsum Co., 88 Civ. 3317 (S.D.N.Y. filed May 11,
1988). In October 1990, the case was transferred to this Court
for expedited trial.
This case involves application of § 4 of the New York Toxic
Tort Reform Act of 1986, Ch. 682, L. 1986, § 4, reprinted in 1
McKinney's Session Laws of New York 1567 (West 1986) ("the
Revival Statute"). For a detailed discussion of this statute
see Monte v. National Gypsum Co., 921 F.2d 405, 406-08 (2d Cir.
Prior to 1986, New York law provided that a cause of action
for exposure to toxic
substances accrued at the date of last exposure to the toxic
substance. The applicable statute of limitations was three
years from that date. Monte, at 407; In re Joint Eastern and
Southern Districts Asbestos Litigation, relating to Anderson v.
Armstrong World Indus., Inc., No. 87 Civ. 4567 (S.D.N.Y. Dec.
18, 1988) and Oefelein v. Armstrong World Indus., Inc., No. 87
Civ. 4279 (Dec. 18, 1988); Steinhardt v. Johns-Manville Corp.,
54 N.Y.2d 1008, 1010-11, 446 N.Y.S.2d 244, 246,
430 N.E.2d 1297, 1299 (1981), cert. denied sub nom. Rosenberg v.
Johns-Manville Sales Corp., 456 U.S. 967, 102 S.Ct. 2226, 72
L.Ed.2d 840 (1982). If the exposed victim died prior to the end
of the limitations period, the Estates, Powers and Trusts Law
("EPTL") granted survivors two years in which to bring a
wrongful death action. N.Y.Est. Powers & Trusts Law § 5-4.1.
A significant problem with this was that toxic exposure
victims might be unaware of either the fact of their exposure
or the toxic nature of the substances to which they had been
exposed, and such exposure might not manifest itself as a
disease until long after the date of exposure. Thus many
victims were prevented from collecting for their injuries
because they did not even know that they had been injured
prior to the end of the limitations period.
The Revival Statute addressed this problem by reviving
claims which had been barred because of a lack of timely
awareness of the injury. Specifically, the statute provided a
one-year period in which plaintiffs could bring claims for
exposure to toxic substances which were previously
time-barred. Monte, at 406. The revival was expressly limited,
however, to exclude "any action for damages for a wrongful act,
neglect or default which was not barred as of the date of the
decedent's death and could have been brought pursuant to [EPTL]
Section 5-4.1. . . ."
Shortly after Maiorana filed her individual complaint, the
defendants, through interrogatories, requested Mr. Maiorana's
detailed work history, including dates and locations of
employment and types of exposure to any toxic materials. On
July 16, 1988, Maiorana, through her attorney, responded to
these interrogatories, stating that her husband had been
employed in 1981 as a sheetmetal worker by Triangle Sheet
Metal ("Triangle") and from 1981 to 1983 by DNS Metal, Inc.
("DNS"). While there was no further detail regarding Mr.
Maiorana's work at Triangle, the answers stated that he had
worked at DNS on the installation and fabrication of heating,
ventilating and air conditioning systems. Maiorana claimed
that while at both Triangle and DNS her husband had worked
with "[m]etal, sound attenuation products and various building
and construction products," and expanded the list specifically
to include asbestos at DNS. Maiorana also stated that her
husband had been exposed to asbestos and asbestos dust in both
Following OCF's filing of the instant motion, Maiorana's
counsel sought to amend these interrogatory answers, deleting
asbestos from the list of materials worked with at DNS and
stating that Maiorana had no knowledge of any toxic substances
to which her husband had been exposed at either DNS or
Triangle. Maiorana's counsel also submitted an affidavit
explaining that the prior answers were "incorrect and
inadvertent" and that the amendment was made to correct the
"error" of the original answers. The affidavit further stated
that Maiorana would not attempt to prove at trial that her
husband had been exposed to asbestos while at DNS or Triangle.
1. The Standard for Summary Judgment.
Summary judgment is appropriate where no genuine issue of
material fact exists and the moving party is entitled to
judgment as a matter of law. See Fed.R.Civ.P. 56(c). In
deciding a motion for summary judgment, the court is not
expected to resolve disputed issues of fact, Donahue v. Windsor
Locks Board of Fire Commissioners, 834 F.2d 54, 57 (2d Cir.
1987), but to determine whether there are any factual issues
which require a trial. Matsushita Electric Industrial Co. v.
Zenith Radio Corp., 475 U.S. 574, 585-87, 106 S.Ct. 1348,
1355-56, 89 L.Ed.2d 538 (1986). However, the non-moving party
"must do more than simply show that there is some metaphysical
doubt as to the material facts." Id. at
586, 106 S.Ct. at 1356. This is particularly true when the
issue is one on which the opponent of summary judgment would
bear the burden of proof at trial. Celotex Corp. v. Catrett,
477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265
(1986). "Summary judgment is appropriate when, after drawing
all reasonable inferences in favor of the party against whom
summary judgment is sought, no reasonable trier of fact could
find in favor of the nonmoving party." Lund's, Inc. v. Chemical
Bank, 870 F.2d 840, 844 (2d Cir. 1989).
2. Under Maiorana's Original Interrogatory Answers Her
Claim Is Not Revived.
Unless the Revival Statute applies to Maiorana's wrongful
death claim, it is time-barred, as EPTL § 5-4.1 provides that
"[s]uch an action must be commenced within two years after the
decedent's death." Therefore, the crucial determination is
whether the claim was revived by the statute, or whether it was
excluded from revival as a wrongful death claim which "was not
barred as of the date of the decedent's death and could have
been brought pursuant to Section 5-4.1."
The defendants assert that Maiorana's original answers to
the interrogatories establish that her husband was exposed to
asbestos within three years of his death both at DNS and
Triangle, and that consequently the statute of limitations had
not run on his claim at the date of his death. Therefore, they
conclude, Maiorana had two years from that date to bring a
timely wrongful death claim under § 5-4.1. As this would place
her claim within the exception to the Revival Statute, it would
be time-barred. See Monte, at 407-08; see also Greene v. Abbott
Laboratories, 148 A.D.2d 403, 405, 539 N.Y.S.2d 351, 353 (1st
Dep't 1989) ("could have been brought" language of Revival
Statute refers only to timeliness at date of decedent's death,
regardless of whether plaintiff was aware of claim).
3. No Adequate Explanation Has Been Provided for the
Maiorana's counsel's attempt to amend the original
interrogatory answers to avoid dismissal of the wrongful death
claim is rejected. Not only was the correction made almost two
and a half years after the original responses were signed, the
affidavit in support of the amendment is signed by an attorney
other than the one who signed the original answers, an
attorney who has provided no evidence from anyone directly
involved with the earlier "error" to explain how it had
occurred. Even more significantly, Maiorana herself has
offered no statement to explain how she actually does not
possess information which her attorney previously claimed that
she did. In light of the timing of this change of heart and
its implications with respect to the present motion,
Maiorana's counsel's bare statement that the prior answers
were "incorrect and inadvertent" is simply insufficient to
permit the modification.
4. The Amended Answers Would Not Raise Any Genuine Issue
Even if the proposed amended answers were accepted, they
would be insufficient to oppose the instant motion. In the
amended answers, Maiorana does not claim that her husband was
not exposed to asbestos at DNS or Triangle, but only asserts
that she has no knowledge of any such exposure. Having raised
the issue initially, Maiorana and her counsel cannot escape
simply by claiming a lapse of memory and stipulating that they
will not attempt to prove such exposure. OCF has asserted that
there is no genuine issue as to whether Maiorana's claim could
have been brought within two years after her husband's death,
and Maiorana's motion papers do not contradict this assertion.
Pursuant to Civil Rule 3(g) of the Local Rules for the
Southern and Eastern Districts of New York, this fact must be
deemed to be admitted. Hence regardless of the interrogatory
answers the wrongful death claim must be dismissed.
5. The Dismissal Applies to the Entire Wrongful Death Claim.
Maiorana's counsel also seeks to contain the damage by
limiting the instant
motion to those defendants whose products Mr. Maiorana might
have been exposed to while at DNS and Triangle. Apparently,
counsel would expect to preserve Maiorana's claim against all
other asbestos manufacturers. However, as the Second Circuit
made clear in Monte, Maiorana's wrongful death action accrued
only at the last date of her husband's exposure to asbestos. As
this occurred within three years of his death, her wrongful
death claim against all of the defendants would have been
viable at that time, and thus her entire wrongful death claim
is excluded from the scope of the Revival Statute. Monte, at
407-08. Therefore, Maiorana's entire wrongful death claim must
Because Maiorana has not raised a triable issue as to
whether or not her husband was exposed to asbestos within
three years of his death, her wrongful death claim was viable
at that time and is not revived by the Revival Statute.
Therefore, because she did not bring the claim within two
years of the date of her husband's death, the claim must be
dismissed as barred by the statute of limitations.
It is so ordered.
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