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DeRogatis v. 3M Company

Supreme Court, New York County

April 4, 2013

EMILY DeROGATIS, Individually and as Executrix of, the estate of FRANK DeROGATIS, Plaintiffs,
v.
3M COMPANY, et al, Defendants. Index No. 190150/2011

Unpublished Opinion

DECISION & ORDER

SHERRY KLEIN HEITLER. J

In this asbestos-related personal injury action formerly known as American Standard, Inc. ("American Standard") moves pursuant to CPLR 3212 for summary judgment on the ground that there is no evidence to show that plaintiffs' decedent Frank DeRogatis was exposed to asbestos from an American Standard product.

Mr. DeRogatis was deposed on June 27, 2011 and June 28, 2011.[1] He testified that beginning in 1971 he regularly cleaned ashes out of an American Standard boiler at his in-laws' residence in Queens, New York. When he and his wife Emily inherited that home in 1985, he continued to regularly maintain that boiler until approximately 1993 when they moved to another residence. Mr. DeRogatis testified that cleaning the ash pit exposed him to asbestos fibers (Deposition pp. 28, 295- 297, 300-301, objections omitted):

Q. Do you have any reason to believe that you were exposed to asbestos as a result of cleaning the boiler?
A. I could have been.
Q. How do you believe you could have been exposed.
A. Cleaning ashes out of the boiler. When it got hot, there was a funny smell all the time in the house, you know, when it got too hot. Just the smell.
Q. Now, sir, is it fair to say that based upon your testimony from yesterday that you said, you could have been exposed to asbestos, that you don't have any specific personal knowledge or information that would enable you to testify that you were in fact exposed to asbestos from cleaning out the ashes from this boiler? ...
A. ... Knowing what I know now and what I hear about these boilers, I could have been exposed to asbestos not knowing it.
Q. Okay. How so, sir?
A. From the ashes, and the smoke and the dust that it produced.
Q. What's the basis of your belief that either the ashes or the smoke - strike that. The dust that you're talking about, ...

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