MURIEL ROLLOCK, as Administratrix of the Estate of DONALD ROLLOCK, Plaintiff,
3M COMPANY, et al, Defendants. Index No. 105851/07
DECISION & ORDER
Sherry Klein Heitler J.
In this asbestos-related personal injury action, defendant Griffin Wheel Company ("Griffin") moves pursuant to CPLR 3212 for summary judgment dismissing the complaint against it on the ground that plaintiff has produced no evidence to show that it contributed to plaintiffs decedent's asbestos-related injuries. For the reasons set forth below, the motion is granted.
Donald Rollock worked for the New York City Transit Authority ("NYCTA") from 1947 to approximately 1978 when he retired from his position as a car inspector. Many years later he was diagnosed with malignant mesothelioma and died in or about May of 2005. On April 30, 2007, Murial Rollock ("Plaintiff) commenced this personal injury action on behalf of her deceased father to recover for injuries resulting from his exposure to asbestos-containing products. Mr. Rollock could not be deposed in this action, but his former co-worker at the NYCTA, Kenneth Yeager, testified that Mr. Rollock was exposed to asbestos while working as a car inspector at a facility in Kew Gardens, New York known as the Jamaica barn.
Mr. Yeager testified that from 1967 to 1978 Mr. Rollock served as the senior car inspector at the NYCTA's Jamaica barn. In this role, Mr. Rollock routinely worked underneath train cars on, or in the vicinity of others working on, generators, controllers, power motors, and, of relevance to this motion, composition air brakes. Plaintiff alleges that composition air brakes manufactured by Griffin were one of many sources of Mr. Rollock's asbestos exposure.
Under Mr. Rollock's supervision a team of workers would cut out and replace worn brake shoes on a daily basis, a procedure which created a substantial amount of dust. Mr. Yeager testified that Mr. Rollock personally would be positioned underneath the train cars when brake shoes were being changed. When steel brake shoes were being replaced, the dust created was metallic in nature, but when composition brake shoes were being replaced, the dust created therefrom was laden with asbestos fibers. Additionally, at the end of each workday a night crew would use an air hose to clean the undersides of the cars leaving behind a cloud of dust in the barn which was still there when the workers arrived the next morning.
Defendant Griffin manufactured and sold brake shoes for freight and railway cars under the brand name Anchor Brake Shoes. Defendant contends that it is entitled to summary judgement because Mr. Yeager did not identify either Griffin Wheel or Anchor Brake Shoes as a possible source of Mr. Rollock's exposure. Defendant further states that it has no records to show that it ever sold asbestos-containing brake shoes to the NYCTA while Mr. Rollock was employed there. As such, defendant alleges that its product was never in Mr. Rollock's zone of exposure.
In contravention, plaintiff relies on the testimony in an unrelated matter by John Caputo, a former NYCTA employee who worked at the Jamaica barn from 1981 to 1985 and had testified that Anchor Brakes were used at the Jamaica Barn in the mid-1980s. Plaintiff asserts that these proofs raise an issue of material fact sufficient to defeat summary judgment.
To obtain summary judgment, the movant must establish its cause of action or defense sufficiently to warrant a court's directing judgment in its favor as a matter of law, and must tender sufficient evidence to demonstrate the absence of any material issue of fact. Zuckerman v City of New York, 49 N.Y.2d 557, 562 (1980). In asbestos-related litigation, once the moving defendant has made a prima facie showing of entitlement to judgment as a matter of law, the plaintiff must then demonstrate that there was actual exposure to asbestos fibers released from the defendant's product. Cawein v Flintkote Co., 203 A.D.2d 105, 106 (1st Dept 1994). In this regard, it is sufficient for the plaintiff to show facts and conditions from which the defendant's liability may be reasonably inferred. Reid v Georgia Pacific Corp., 212 A.D.2d 462, 463 (1st Dept 1995). Speculative or conjectural evidence of the manufacturer's identity is not sufficient to raise an issue of fact. Healey v Firestone Tire & Rubber Co., 87 N.Y.2d 596, 602 (1 st Dept 1996).
As set forth above, Mr. Yeager testified that Mr. Rollock would necessarily have been exposed to asbestos throughout his many years overseeing the removal of composite brake shoes at the NYCTA terminal. However, at no point during his deposition does Mr. Yeager identify this defendant's brake shoes as a source of such exposure. To the contrary, he only recalled the use of one type of brake shoe, the Cobra brand brake shoe, for which the defendant is not responsible (plaintiffs exhibit A, pp. 126-127):
Q You also testified earlier that some of the brakes that you observed were manufactured by a company ...