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Lindsay v. Air Liquid Systems Corp.

Sup Ct, New York County

April 8, 2013

WILLIAM LINDSAY and PATRICIA LINDSAY, Plaintiff,
v.
AIR & LIQUID SYSTEMS CORP., et. al., Defendant(s). Index No. 190074/12

Unpublished Opinion

DECISION & ORDER

SHERRY KLEIN HEITLER. J.

In this asbestos personal injury action, defendant Kohler Co. (“Kohler”) moves pursuant to CPLR 3212 for summary judgment dismissing the complaint and all cross-claims asserted against it on the ground that plaintiff William Lindsay did not sufficiently identify a Kohler product as a source of his asbestos exposure.

Mr. Lindsay worked as a union electrician from the early 1960's until 1978 when he became his union's business representative. In or about 2001 he was elected to the Suffolk County Legislature, and currently serves as that body's Presiding Officer.

Mr. Lindsay was diagnosed with mesothelioma on or about January 27, 2012, and, along with his wife Lindsay, commenced this action on or about February 10, 2012. Mr. Lindsay was deposed over the course of five days from March 26, 2012 to April 2, 2012. Copies of his deposition transcripts are submitted as defendant's exhibit B ("Deposition"). Relevant to this motion is Mr. Lindsay's testimony that he was exposed to asbestos containing products while working as an electrician. In this regard, Mr. Lindsay testified as follows (Deposition pp. 1072, 1165-66, 1187, 1189-90, objections omitted):

Q What were the brand names, trade names or manufacturers' names of the boilers that you wired up and disturbed the asbestos insulation on throughout your career?
A ... I remember Kohler boilers. I don't remember new installation, I remember a renovation job with Kohler boilers. I can't remember where but I do remember it. American Standard, A.O. Smith, Crane, Bryant, Foster Wheeler was the big, great big boilers. Slant/Fin, Weil-McLain, Utica, York Shipley was big ones again. Peerless. Did I say Bryant?
Q Today you testified — you identified Kohler as a manufacturer of boilers you saw asbestos workers applying asbestos to; do you recall that testimony?
MS. BURSHTYN: She wants to know if you remember testifying about asbestos workers putting insulation on Kohler boilers; do you recall?
A I don't. I think the Kohler boiler that I saw was an older one that we did some renovation work on.
Q You performed renovation work on a Kohler boiler?
A Not on the boiler itself but we were renovating a building where there was an old Kohler boiler
Q And do you think you were exposed to asbestos from a Kohler boiler ...

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