SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

85 

CA 16-00947 

PRESENT: CARNI, J.P., LINDLEY, NEMOYER, TROUTMAN, AND SCUDDER, JJ. 

 

IN THE MATTER OF THE EIGHTH JUDICIAL DISTRICT 

ASBESTOS LITIGATION.

-----------------------------------------------

DONALD J. TERWILLIGER, ADMINISTRATOR OF THE 

ESTATE OF DONALD R. TERWILLIGER, DECEASED, 

PLAINTIFF-RESPONDENT, 

 

V MEMORANDUM AND ORDER

BEAZER EAST, INC., THE COMPANY, FORMERLY KNOWN 

AS KOPPERS COMPANY, INC., ET AL., DEFENDANTS, 

AND HONEYWELL INTERNATIONAL, INC., SUCCESSOR 

IN INTEREST TO WILPUTTE COKE OVEN DIVISION OF 

ALLIED CHEMICAL CORPORATION, DEFENDANT-APPELLANT. 

 

HARRIS BEACH PLLC, PITTSFORD (A. VINCENT BUZARD OF COUNSEL), FOR

DEFENDANT-APPELLANT. 

LIPSITZ & PONTERIO, LLC, BUFFALO (DENNIS P. HARLOW OF COUNSEL), FOR

PLAINTIFF-RESPONDENT. 

 

Appeal from an order of the Supreme Court, Erie County (Deborah

A. Chimes, J.), dated March 7, 2016. The order denied the motion of

defendant Honeywell International, Inc., successor in interest to the

Wilputte Coke Oven Division of Allied Chemical Corporation, for

summary judgment dismissing the complaint against it. 

It is hereby ORDERED that the order so appealed from is

unanimously reversed on the law without costs, the motion is granted

and the complaint against defendant Honeywell International, Inc.,

successor in interest to Wilputte Coke Oven Division of Allied

Chemical Corporation, is dismissed. 

Memorandum: In this products liability and negligence action,

plaintiff, as administrator of the estate of Donald R. Terwilliger

(decedent), seeks damages for injuries sustained by decedent as a

result of his exposure to asbestos and coke oven emissions while

employed at the Bethlehem Steel plant (Bethlehem) in Lackawanna, New

York. Defendant Honeywell International, Inc. (Honeywell) was sued as

the successor in interest to Wilputte Coke Oven Division of Allied

Chemical Corporation (Wilputte), the designer and builder of five coke

oven batteries, Nos. 5 through 9, at Bethlehem. 

Honeywell moved for summary judgment seeking dismissal of the
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CA 16-00947 

complaint, which, as relevant on appeal, alleged products liability

theories in the second and fourth causes of action. Initially, we

note that plaintiff conceded in a postargument submission that the

first, third and sixth causes of action should be dismissed, and the

fifth cause of action is not asserted against Honeywell. Thus, the

only two causes of action at issue are the second and fourth causes of

action. We further note at the outset that plaintiff does not contend

that Honeywell failed to meet its initial burden, and neither party

contends that there are issues of fact. Thus, we are presented with a

pure question of law on undisputed facts.

In support of those parts of its motion for summary judgment

dismissing the second and fourth causes of action, Honeywell contended

that the coke oven batteries are not products for purposes of products

liability theories and that Wilputte’s contract with Bethlehem was one

predominantly for services, not the sale of a product placed into the

stream of commerce. In denying the motion, Supreme Court rejected

those contentions, concluding that the coke ovens are “products”

subject to products liability theories and that the transaction

between Wilputte and Bethlehem was “more like the sale of goods than a

contract for services.” Honeywell appeals, and we reverse. 

We begin our analysis by noting that, in Matter of City of

Lackawanna v State Bd. of Equalization & Assessment of State of N.Y.

(16 NY2d 222, 226-227), the Court of Appeals concluded, when

discussing the nature of these coke oven batteries, that “[t]here is

no doubt that, by common-law standards, these structures would be

deemed real property. Their magnitude, their mode of physical

annexation to the land and the obvious intention of the owner that

such annexation be permanent would, indeed, compel that conclusion.” 

Using the construction of Battery No. 9 as an example,

Honeywell’s submissions established that the construction of a coke

oven battery was a multistage process that took place over

approximately 18 months. The overall construction of the battery

would have taken approximately 1,460,000 hours of labor to complete

over six phases. Phase One involved, among other things, the

construction of the foundation and oven deck slab, requiring

approximately 15,000 hours of labor over a 100-day period, and 14,000

cubic yards of reinforced concrete and 45,000 hours involving

operating engineers and trade persons over a 210-day period. Phase

Two was the brick and structural work phase, and involved the

construction of a quench tower and a 300-foot coal conveyer system,

the latter requiring 3,300 tons of structural steel and 4,400 hours

involving operating engineers and ironworkers over a period of 9 to 12

months. The period of labor for the brick work of Battery No. 9 was

approximately 520,000 hours over a 180-day period. Phases Three

(involving plumbers, steam fitters and electricians), Four (involving

HVAC installation) and Five (involving installation of the quench,

charging and pusher tracks) would have, collectively, required 452,000

hours of labor to complete. Finally, Phase Six, which involved the

construction of offices, a control room, bathrooms and a locker room,

would have taken 60 to 90 days and 25,000 to 30,000 hours of labor to

complete. 
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CA 16-00947 

In light of the foregoing, we conclude that service predominated

the transaction herein and that it was a contract for the rendition of

services, i.e., a work, labor and materials contract, rather than a

contract for the sale of a product (see Hart v Moray Homes, 158 AD2d

890, 891-892; Ben Constr. Corp. v Ventre, 23 AD2d 44, 45; see

generally Perlmutter v Beth David Hosp., 308 NY 100, 104-108, rearg

denied 308 NY 812). We further conclude that a coke oven, installed

as part of the construction of the “great complex of masonry

structures” at Bethlehem (City of Lackawanna, 16 NY2d at 227),

permanently affixed to the real property within a coke oven battery,

does not constitute a “product” for purposes of plaintiff’s products

liability causes of action (see Papp v Rocky Mtn. Oil & Minerals,

Inc., 236 Mont 330, 340-341, 769 P2d 1249, 1256). 

Entered: May 5, 2017 Frances E. Cafarell

Clerk of the Court