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Wubbe v. A.W. Chesterton Co. Inc.

Supreme Court, New York County

June 27, 2013

GLORIA WUBBE, and TERESA WAITE, Individually and as Executrix of the Estate of WILLIAM ERNEST WUBBE, Plaintiffs,
v.
A.. W. CHESTERTON CO., INC., et al., Defendants. Index No. 116162/05

Unpublished Opinion

DECISION AND ORDER

SHERRY KLEIN HEITLER, J.

In this asbestos personal injury action, defendant Crane Co. ("Crane") moves pursuant to CPLR § 3212 for summary judgment dismissing plaintiffs' complaint and any cross-claims against it on the ground that there is no evidence that Mr. Wubbe was ever exposed to asbestos as a result of any product manufactured, sold, or distributed by Crane. For the reasons set forth below, the motion is granted.

This action was commenced by William Ernest Wubbe and his wife Gloria Wubbe on November 18, 2005 to recover damages for personal injuries allegedly caused by Mr. Wubbe's exposure to asbestos.[1] Mr. Wubbe was deposed on June 9, 2006 and July 10, 2006. Copies of his deposition transcripts are submitted as defendants' exhibit D ("Deposition"). Mr. Wubbe testified he was employed as an electronic technician working aboard several ships, including the USS Constellation (CV-64) and the USS Saratoga (CV-60), at the Brooklyn Navy Yard from 1951 until 1965. (Deposition pp. 41-43). Mr. Wubbe testified that he mostly worked above deck and in the ships' "electronic spaces" which housed the radar, communication, and fire control systems. (Deposition pp. 46, 55, 63). He also testified that, as a result of his work in close proximity to other trades working on board, including pipe laggers and welders, he was exposed to asbestos-containing welding blankets, gaskets, insulation, wires, and the dust released therefrom. (Deposition pp. 47, 48, 50, 70-71).

The defendant argues that summary judgment should be granted since Mr. Wubbe failed to identify any Crane product as a source of his asbestos exposure. In opposition plaintiffs rely on Mr. Wubbe's testimony as well as documents from both Crane and the United State Navy to show that Crane valves were present on some of the ships on which Mr. Wubbe worked. (Plaintiffs exhibits 1, 3, 4).

The only testimony over two days of deposition that refers to valves was adduced from Mr. Wubbe as follows (Deposition p. 64):

Q. Sir, do you recall any other tradesman working around you on the Saratoga, using asbestos-containing materials?
A. Yes.
Q. And what tradesman were those, sir?
A. Those were laggers, the welders.
Q. And what were the laggers doing around you on the Saratoga?
A. The same as they did on the other ship. They would wrap the pipes, and valves, and joints in the pipes.

This does not identify the manufacturer of the valves nor their location aboard the Constellation or the Saratoga. Plaintiffs submit documents that purport to show that Crane valves were used aboard some of the ships referenced in Mr. Wubbe's testimony. (Plaintiffs' exhibits 3-5). The documents indicate that 85 lb. Crane valves were used aboard the Constellation, but there is nothing to show where on that class of ship they were installed. Crane valves were also used in connection with the auxiliary steam system piping and were located in the engine rooms aboard the destroyers on which Mr. Wubbe testified he worked. According to his testimony, Mr. Wubbe spent an average of three days working aboard each of several destroyers (Deposition p. 86). However, he described the ...


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