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 

--------------------------- ----------------------------X 

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 NEW YORK, 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 

Page 1 of 5 

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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 

Upon the foregoing documents, it is ordered that the instant motion for summary 

judgment seeking dismissal of this action, pursuant to CPLR §3212, is granted for the reasons set 

forth below. 

Here, defendant Crosby Valve, LLC ("Crosby") moves to dismiss this action on the 

grounds that plaintiff, John B. Daly, Jr. ("Mr. Daly") was not exposed to asbestos from any 

Crosby product. See Memorandum of Law in Support of Crosby Valve, LLC's Motion for 

Summary Judgment. In opposition, plaintiff highlights Mr. Daly's clear and unequivocal 

testimony identifying Crosby as a manufacturer of valves containing asbestos-containing parts 

during the course of his work as a Con Ed mechanic 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's testimony that he was 

exposed to asbestos from "flange gaskets" used along with Crosby valves, and not actually 

manufactured by Crosby. See Reply Memorandum of Law of Defendant Crosby Valve, LLC, In 

Support of Motion for Summary Judgment, p. 3-4. 

The Court notes that summary judgment is a drastic remedy and should only be granted if 

the moving party has sufficiently established that it is warranted as a matter of law. See Alvarez v 

Prospect Hosp., 68 NY2d 320, 324 (1986). "The proponent of a summary judgment motion must 

make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient 

evidence to eliminate any material issues of fact from the case". Winegradv New York 

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

Motion No. 002 

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University Medical Center, 64 NY2d 851, 853 (1985). Despite the sufficiency of the opposing 

papers, the failure to make such a showing requires denial of the motion. See id. at 853. 

Additionally, summary judgment motions should be denied if the opposing party presents 

admissible evidence establishing that there is a genuine issue of fact remaining. See Zuckerman v 

City of New York, 49 NY2d 557, 560 (1980). "In determining whether summary judgment is 

appropriate, the motion court should draw all reasonable inferences in favor of the nonmoving 

party and should not pass on issues of credibility." Garcia v J.C. Duggan, Inc., 180 AD2d 579, 

580 (1 st Dep'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., 3 NY2d 395,404 (1957) (internal quotations omitted). As such, summary 

judgment is rarely granted in negligence actions unless there is no conflict at all in the evidence. 

See Ugarriza v Schmieder, 46 NY2d 471, 475-476 (1979). Furthermore, the Appellate Division, 

First Department has held that on a motion for summary judgment, it is moving defendant's 

burden "to unequivocally establish that its product could not have contributed to the causation of 

plaintiffs injury". Reid v Georgia-Pacific Corp., 212 AD2d 462,463 (Pt Dep't 1995). 

Ordinarily, the appropriate standard at summary judgment for moving defendant Crosby 

in an asbestos action would be that of Dyer v Amchem Products Inc., 207 AD3d 408, 409 (1st 

Dep't 2022). In Dyer, defendants were granted summary judgment not by "simply argu[ing] that 

plaintiff could not affirmatively prove causation" but by "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 Dykes Lumber Co., Inc., et. al., 2023 NY Slip Op 

05796 (1st Dep't 2023), stating that "the parties' competing causation evidence constituted the 

classic 'battle of the experts"' sufficient to raise a question of fact, and to preclude summary 

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

, Motion No. 002 

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judgment. However, in the instant motion, defendant Crosby correctly identifies In re New York 

City Asbestos Litigation (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's testimony does not indicate any products manufactured 

by defendant Crosby, and that moving defendant has provided evidence that such gaskets were 

not required by Crosby for the use of their valves. Plaintiffs exhibits have been identified as 

largely withdrawn, irrelevant to Crosby as a manufacturer, or as containing no reference to the 

asbestos-containing gaskets at issue herein. See Reply Memorandum of Law, supra, p. 6-8. As 

.such, plaintiff has failed to raise an issue of fact sufficient to defeat summary judgment. Here, 

· plaintiff has not provided sufficient evidence to demonstrate that defendant Crosby was actively 

involved in the asbestos gaskets at issue herein or "substantially participated" in integrating such 

gaskets with Crosby-manufactured valves. See Dummitt, supra. 

Accordingly, it is 

ORDERED that defendant Crosby's motion for summary judgment is granted; and it is 

further 

ORDERED that the complaint is dismissed in its entirety as against defendant Crosby 

with costs and disbursements to said defendant as taxed b,Y the Clerk of the Court, and the Clerk 

is directed to enter judgment accordingly in favor of said defendant; and it is further 

ORDERED that the action is severed and continued against the remaining defendants; 

and it is further 

ORDERED that the caption be amended to reflect the dismissal and that all future papers 

filed with the court bear the amended caption; and it is further 

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

Motion No. 002 

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ORDERED that within 30 days of entry defendant Crosby shall serve all parties with a 

copy of this Decision/Order with notice of entry. 

This constitutes the Decision/Order of the 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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