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Duplessis v. A.O Smith Water Products Co.

Supreme Court, New York County

July 29, 2013

JAMES JOSEPH DUPLESSIS, Plaintiff,
v.
A.O SMITH WATER PRODUCTS CO., et al., Defendant Index No. 105959/03

Unpublished Opinion

DECISION & ORDER

SHERRY KLEIN HEITLER, J.

In this asbestos personal injury action, defendant Crane Co. ("Crane") moves pursuant to CPLR 3211(a)(4) and (8) to dismiss this action as duplicative of a prior multi-plaintiff action and for lack of personal jurisdiction. Defendant also moves pursuant to CPLR 3212 for summary judgment on the ground that plaintiff James Duplessis failed to establish that he was exposed to asbestos from any product manufactured, supplied or distributed by Crane. For the reasons set forth below, the motion is denied.

BACKGROUND

James Duplessis was diagnosed with pleural disease on May 30, 2002 and with asbestosis on December 9, 2003. On December 31, 2002 Mr. Duplessis joined with numerous other plaintiffs in a multi-plaintiff action in this court bearing Index No. 128019/02 to recover for personal injuries caused by their alleged asbestos exposure. On March 31, 2003, in accordance with a court order which directed all New York City Asbestos Litigation ("NYCAL") plaintiffs to abandon multi-plaintiff actions in favor of individual actions, Mr. Duplessis abandoned the aforesaid multi-plaintiff action and individually filed the within action bearing Index No. 105959/03.

Mr. Duplessis was deposed on March 22, 2012.[1] During his deposition, he testified that he worked as an electrician from 1955 to 1995 at various commercial sites in upstate New York. Among other things, Mr. Duplessis testified that while working at the Nine Mile Powerhouse and Alcan Aluminum Plant in Oswego, New York he was exposed to asbestos-containing materials, including asbestos insulation and wiring, from the installation, maintenance, and repair of Crane valves, and from other trades insulating Cyclotherm boilers.[2]

Defendant argues that the court lacks personal jurisdiction over it due to plaintiffs failure to properly serve Crane in the within action. Defendant also argues that plaintiff failed to demonstrate that he was exposed to asbestos fibers originating from a product manufactured, supplied or distributed by Crane. Plaintiff asserts that Crane was properly served as a defendant herein, and that Mr. Duplessis' testimony regarding his asbestos exposure while working with and around Crane products raises a triable issue of fact sufficient to defeat summary judgment.

DISCUSSION

I. Motion to Dismiss

Defendant raised virtually identical issues under CPLR 3211(a)(4) and (8) in Contento v A. C. &S., et al, Index No. 121539/01, decided by this court on March 13, 2012. In Contento I held that:

Crane Co.'s motion to dismiss because there is another action pending against it is without merit. In respect of this issue, Crane Co. submits that because there is a prior multi-plaintiff action pending against it. . . which arises from the same set of facts and asserts the same causes of action as the within action, dismissal of the within action is required under CPLR 3211(a)(4). To the contrary, if plaintiffs case against this defendant was severed from the prior multi-plaintiff action in favor of the within single plaintiff action, by reason of such severance the plaintiffs prior action would no longer be viable, eliminating the possibility of the type of conflict addressed by CPLR 3211(a)(4).

Contento, supra, at *2. Similarly, in this case, although the prior action appears to still be active in respect of certain other plaintiffs, it bears no relation to the within action which was severed therefrom in 2003 and which has been maintained as a separate action by the plaintiff under Index No. 105959/03 ever since. Also as set forth in Contento, since Crane did not dispute service upon it in the prior multi-plaintiff action, it has no ground upon which to challenge service upon it in this individual action, the pleadings for which were transferred to this action under a new index number by direction of this court. Id. Even assuming, arguendo, that there was a service deficiency, the motion to dismiss would still be denied, as the objection to personal jurisdiction based on improper service has been waived by Crane's willing participation in this matter over the course of many years. See Lucadamo v A.O. Smith Water Products, Co., et al, Index No. 116293/04 (Sup. Ct. NY Co., June 26, 2013, Heitler, J.)

II. Motion for Summary Judgement

Summary judgment is a drastic remedy that must not be granted if there is any doubt about the existence of a triable issue of fact. Tronlone v Lac d' Amiante du Quebec, Ltee, 297 A.D.2d 528, 528-529 (1st Dept 2002). In an asbestos personal injury action, should the moving defendant make & prima facie showing of entitlement to summary judgment as a matter of law, the plaintiff must then demonstrate that he was exposed to asbestos fibers released from the defendant's product. Cawein v Flintkote Co., 203 A.D.2d 105, 106 (1st Dept 1994). Moreover, plaintiff must show that it was more likely than not that such exposure was a substantial factor in his injury. Diel v Flintkote Co., 204 A.D.2d 53, 54 (1st Dept 1994). In this regard, it is sufficient for plaintiffs 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). All reasonable inferences should be resolved in the plaintiffs favor. Dauman Displays, Inc. v Masturzo, 168 A.D.2d 204, 205 (1st Dept 1990).

During his deposition, Mr. Duplessis testified that he was exposed to asbestos at the Nine Mile Powerhouse while working in the presence of other trades that installed asbestos insulation on Crane products and from personally connecting asbestos-coated wiring to Crane valves (defendant's exhibit E, pp. 74-75, 77, 93-94):

Q. Was there anything about the work that you performed at Nine Mile Two that you believe exposed you to asbestos?
A. I worked in and around other crafts, insulators, that were installing asbestos materials.
Q . You mentioned insulators. What were the insulators doing in your presence?
A. Putting on pipe covering, putting on duct--covering ducts.
Q. Anything else?
A. That would be -- you know, they would be insulating valves, and you know....
Q. What about the insulators [sic] work do you believe exposed you to asbestos?
A. Just being in the presence of their work. It created dust. It ...

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