### Daly v Amchem Prods., Inc. 2023 NY Slip Op 34539(U) December 27, 2023 Supreme Court, New York County Docket Number: Index No. 190297/2019 Judge: Adam Silvera Cases posted with a "30000" identifier, i.e., 2013 NY Slip

Op 30001(U), are republished from various New York State and local government sources, including the New

York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.INDEX NO. 190297/2019 NYSCEF DOC. NO. 191 RECEIVED NYSCEF: 12/27/2023

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### SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. ADAM SILVERA Justice



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MARY DALY, AS ADMINISTRATRIX FOR THE ESTATE OF JOHN B DALY JR. AND MARY DALY, INDIVIDUALL, PART
INDEX NO. MOTION DATE 190297/2019 10/10/2023 13

Plaintiff, MOTION SEQ. NO.
___ 00_2
__-vAMCHEM PRODUCTS, INC., N/K/A RHONE POULENC AG COMPANY, N/K/A BAYER CROPSCIENCE INC, PARAMOUNT GLOBAL, F/K/A VIACOMCBS INC.,F/K/A CBS CORPORATION, A DELAWARE CORPORATION, F/K/A/ VIACOM INC.,SUCCESSOR BY MERGER TO CBS CORPORATION, A PENNSYLVANIA CORPORATION, F/K/A WESTINGHOUSE ELECTRIC CORPORATION, CERTAINTEED CORPORATION, CLEAVER BROOKS COMPANY, INC, CRANE CO, CRANE CO. INDIVIDUALLY AND AS SUCCESSOR TO PACIFIC VALVES, CROSBY VALVE LLC,ELECTROLUX HOME PRODUCTS, INC. INDIVIDUALLY, AND AS SUCCESSOR TO TAPPAN AND COPES-VULCAN, FISHER CONTROL VALVES, FISHER CONTROLS INTERNATIONAL, LLC F/K/A FISHER CONTROLS CO., AS SUCCESSOR IN INTEREST TO FISHER GOVERNOR COMPANY, FLOWSERVE US, INC. INDIVIDUALLY AND SUCCESSOR TO ROCKWELL MANUFACTURING COMPANY, EDWARD VALVE, INC.,NORDSTROM VALVES, INC., EDWARD VOGT VALVE COMPANY, AND VOGT VALVE COMPANY, FOSTER WHEELER, L.L.C, GENERAL ELECTRIC COMPANY, GOULDS PUMPS LLC,IMO INDUSTRIES, INC, LANDIS & GYR, INC, PFIZER, INC. (PFIZER), ROCKWE;LL AUTOMATION, INC., INDIVIDUALLY, AND AS SUCCESSOR TO ROCKWELL INTERNATIONAL CORP., NORTH AMERICAN ROCKWELL, AND ROCKWELL MANUFACTURING COMPANY, ROCKWELL AUTOMATION, INC.,AS SUCCESSOR IN INTEREST TO ALLEN~ BRADLEY COMPANY, LLC,U.S. RUBBER COMPANY (UNIROYAL), UNION CARBIDE CORPORATION, CONSOLIDATED EDISON COMPANY OF NEWYORK, INC.,COURTER & COMPANY INCORPORATED, INDUSTRIAL HOLDINGS CORPORATION INDIVIDUALLY AND AS SUCCESSOR IN INTEREST TO CARBORUNDUM, NORTON PACKO INDUSTRIAL CERAMICS, INC.,SAINT-GOBAIN ABRASIVES, INC.,INDIVIDUALLY, AND AS SUCCESSOR TO NORTON COMPANY, Defendant.

190297/2019 DALY, JR, JOHN 8 vs. AMCHEM PRODUCTS, INC., Motion No. 002 DECISION 

### + ORDER ON MOTION

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### [* 1]INDEX NO. 190297/2019 NYSCEF DOC. NO. 191 RECEIVED NYSCEF: 12/27/2023

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## ------------------------------------ -----------------X The following e-filed documents, listed by NYSCEF document number (Motion 002) 120, 121, 122, 123, 124, 125, 126, 127, 139, 140, 141, 142, 143, 144, 145, 146, 147, 148, 149, 150, 151, 152, 154, 156, 157, 162,163,164,165 were read on this motion to/for 

### JUDGMENT-SUMMARY Uponthe foregoing documents, it is ordered that the instant motion for summary judgment seeking dismissal ofthis action, pursuantto CPLR §3212, is granted for the reasons set forth below. Here, defendant Crosby Valve, LLC ("Crosby") moves to dismiss this action onthe grounds that plaintiff, John B. Daly, Jr. ("Mr. Daly") was not exposed to asbestos from any Crosby product. 

### See Memorandum ofLawin Support ofCrosby Valve, LLC's Motion for Summary Judgment. In opposition, plaintiffhighlights Mr. Daly's clear and unequivocal testimony identifying Crosby as a manufacturer ofvalves containing asbestos-containing parts during the course ofhis work as a Con Edmechanic 1974-2012. 

### See Affirmation in Opposition to Defendant Crosby Valve, LLC's Motion for Summary Judgment. Specifically, defendant Crosby's motion is based on Mr. Daly'stestimony that he was exposed to asbestos from "flange gaskets" used along with Crosby valves, and not actually manufacturedby Crosby. 

### See Reply Memorandum ofLaw ofDefendant Crosby Valve, LLC, In Support ofMotion for Summary Judgment, p. 3-4. The Courtnotes that summaryjudgmentis a drastic remedy and should only be granted if the moving party has sufficiently established that it is warranted as a matter oflaw. 

### SeeAlvarez v ProspectHosp., 68 NY2d 320, 324 (1986). "The proponent ofa summaryjudgmentmotion must make a primafacie showing ofentitlementtojudgment as a matter oflaw, tendering sufficient evidence to eliminate any material issues offact from the case". 

### Winegradv New York

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### [* 2]INDEX NO. 190297/2019 NYSCEF DOC. NO. 191 RECEIVED NYSCEF: 12/27/2023

3 of 5 University Medical Center, 64 NY2d 851, 853 (1985). Despite the sufficiency ofthe opposing papers, the failure to make such a showing requires denial ofthe motion. See id. at 853. Additionally, summaryjudgmentmotions should be denied ifthe opposing party presents admissible evidence establishing thatthere is a genuine issue offact remaining. See Zuckerman v City of New York, 49 NY2d 557, 560 (1980). "In determining whether summaryjudgment is appropriate, the motion court should draw all reasonable inferences in favor ofthe nonmoving party and should notpass on issues ofcredibility." Garcia v J.C. Duggan, Inc., 180 AD2d 579, 580 (1 stDep't 1992), citing Dauman Displays, Inc. v Masturzo, 168 AD2d 204 (1 st Dep't 1990). The court's role is "issue-finding, rather than issue-determination". Sillman v Twentieth CenturyFox Film Corp., 3NY2d 395,404 (1957) (internal quotations omitted). As such, summary judgment is rarely granted in negligence actions unless there is no conflict at all inthe evidence. See Ugarriza v Schmieder, 46 NY2d471, 475-476 (1979). Furthermore, the Appellate Division, FirstDepartmenthas held that on a motion for summaryjudgment, it is moving defendant's burden "tounequivocally establishthat its product could not have contributed to the causation of plaintiffs injury". Reidv Georgia-Pacific Corp., 212 AD2d 462,463 (PtDep't 1995). Ordinarily, the appropriate standard at summaryjudgmentfor moving defendant Crosby in an asbestos action would be that ofDyer vAmchemProductsInc., 207 AD3d 408, 409 (1st Dep't 2022). In Dyer, defendants were granted summaryjudgmentnotby "simply argu[ing] that plaintiffcould not affirmatively prove causation" butby "affirmatively prov[ing], as a matter of law, that there was no causation." Id. The Appellate Division, First Department, recently affirmed this Court's decision in Sason v DykesLumber Co., Inc., et. al., 2023 NY Slip Op 05796 (1stDep't2023), stating that "the parties' competing causation evidence constitutedthe classic 'battle ofthe experts"' sufficientto raise a question offact, and to preclude summary

190297/2019 DALY, JR, JOHN B vs. AMCHEM PRODUCTS, INC.,

,Motion No. 002 Page 3 of5 

### [* 3]INDEX NO. 190297/2019 NYSCEF DOC. NO. 191 RECEIVED NYSCEF: 12/27/2023

4 of 5 judgment. However, inthe instantmotion, defendant Crosby correctly identifies 

### In re New York CityAsbestosLitigation (Dummitt), 27 NY3d 765, 799 (N.Y. 2016) as the standard governing defendant's liability for solely a third-party product. The Court finds that Mr. Daly'stestimony does not indicate any products manufactured by defendant Crosby, and thatmoving defendant has provided evidence that such gaskets were notrequired by Crosby for the use oftheir valves. Plaintiffs exhibits have been identified as largely withdrawn, irrelevantto Crosby as a manufacturer, or as containing no reference to the asbestos-containing gaskets at issue herein. 

### See Reply Memorandum ofLaw, 

### supra, p. 6-8. As .such, plaintiffhas failed to raise an issue offact sufficientto defeat summaryjudgment. Here,

· plaintiffhas notprovided sufficient evidence to demonstrate that defendant Crosby was actively

involved inthe asbestos gaskets at issue herein or "substantiallyparticipated" in integrating such gaskets with Crosby-manufactured valves. 

### See Dummitt, supra. Accordingly, it is ORDERED that defendant Crosby's motion for summaryjudgmentis granted; and it is further ORDERED thatthe complaint is dismissed in its entirety as against defendant Crosby withcosts and disbursements to said defendant as taxed b,Y the Clerk ofthe Court, and the Clerk is directed to enterjudgment accordingly infavor ofsaid defendant; and it is further ORDERED thatthe action is severed and continued against the remaining defendants; andit is further ORDERED thatthe captionbe amended to reflect the dismissal and that all future papers filed withthe courtbearthe amended caption; and it is further

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5 of 5 ORDERED that within 30 days ofentry defendant Crosby shall serve all parties with a copy ofthis Decision/Order with notice ofentry. This constitutes the Decision/Order ofthe Court.

12/27/2023

DATE CHECK ONE:
APPLICATION: CHECK IF APPROPRIATE: CASE DISPOSED GRANTED
.

**□** DENIED SETTLE ORDER INCLUDES TRANSFER/REASSIGN

190297/2019 DALY, JR, JOHN B vs. AMCHEM PRODUCTS, INC., Motion No. 002 

# {Jl~

ADAM SILVERA, J.S.C. 

# 8 NON-FINAL DISPOSITION GRANTED IN PART SUBMIT ORDER FIDUCIARY APPOINTMENT 

### □ OTHER

**□** REFERENCE

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