Henry v. AERCO Int'l

2020 NY Slip Op 35010(U)

Lindsay P. Henry and Jennifer A. Henry, as Co-Executors for the Estate of Patrick Henry, Plaintiffs, v. Aerco International, Inc. et al. Defendants.

Index No. 613842-2017

Supreme Court, Suffolk County

July 21, 2020

Unpublished Opinion

ORIG. RETURN DATE: 4-1-2020

FINAL SUBMITTED DATE: 7-1-2020

PLAINTIFFS' ATTORNEY:

WEITZ & LUXENBERG

DEFENDANT'S ATTORNEY:

Attorney for Viking Pump, Inc.

HAWKINS PARNELL THACKSTON & YOUNG LLP

PRESENT: HON. JERRY GARGUILO SUPREME COURT JUSTICE

HON JERRY GARGUILO, JSC

Upon consideration of the notice of motion for an order granting summary judgment in favor of the defendant Viking Pump, Inc., the supporting affirmation, exhibits, and memorandum of law, the affirmation in opposition on behalf of the plaintiff Lindsay P. Henry and Jennifer A. Henry, as Co-Executors for the Estate of Patrick Henry ["the plaintiff], and supporting papers, and the defendant's reply, it is

ORDERED that defendant Viking Pump, Inc.'s motion for an order granting summary judgment dismissing the complaint insofar as asserted against it is denied.

This action was commenced on July 21, 2017, by the filing of a complaint on behalf of Patrick Henry ["the decedent"], against numerous corporate entities including the movant, defendant Viking Pump, Inc. ["the defendant" or "Viking"]. The complaint made the following allegations against Viking and the other defendants.

Plaintiff Patrick Henry ["the decedent"], continuously worked with and was exposed to the asbestos and asbestos-containing products and materials mined, manufactured, processed, imported, converted, compounded, installed, distributed, or sold by the defendants. During the course of his employment, the decedent was exposed to the defendants' asbestos and asbestos containing materials to which exposure directly and proximately caused him to develop an asbestos related disease. During the scope and course of the decedent's employment he was necessarily and unavoidably exposed to and did inhale and ingest dust and/or asbestos fibers emanating from the asbestos and asbestos-containing products and/or equipment of the defendants (Dkt. No. 1).

The original complaint contained six causes of action alleging various theories of liability premised upon the defendants' alleged negligence, strict liability in tort including its failure to warn, breach of warranty-express and implied, market-share liability, and violations of Labor Law §§200 and 241(6), respectively, and for loss of services. The original complaint sought compensatory and punitive damages, each separately in the amount of $10 million. An amended complaint substituted successor entities to several of the original corporate defendants (Dkt No. 5). On July 22, 2018, the decedent passed away at eighty-eight years of age, having been diagnosed with lung cancer two years earlier.

Viking filed an Answer with Cross Claims dated September 29, 2019 (Dkt. 85). By order dated October 16, 2019, Lindsay P. Henry and Jennifer A. Henry as Co-Executors for the Estate of Patrick Henry were substituted as plaintiff in the above-entitled action (Dkt. 80). Shortly thereafter, the plaintiff filed a Supplemental Summons and Third Amended Complaint (Dkt. No. 82), substituting the Estate as the named plaintiff and adding causes of action for wrongful death, pecuniary loss, and breach of warranty on behalf of the Executors individually. Viking filed an Answer to the Third Amended Complaint dated December 16, 2019, asserting sixty-four affirmative defenses and two cross claims for contribution and indemnification, respectively (Dkt. 85).

In support of summary judgment Viking submitted, among other things, a transcript of the decedent's testimony taken over the course of two days in August of 2017, and a document entitled "PLAINTIFF'S RESPONSES TO DEFENDANT'S FOURTH AMENDED STANDARD SET OF INTERROGATORIES AND REQUEST FOR PRODUCTION OF DOCUMENTS" executed by the decedent, dated July 24, 2017, and sworn to at the time of the decedent's deposition the following month (Dkt. Nos. 91 and 92). The Interrogatory Responses conclude with a chart that indicates that in the early 1950's, the decedent served as a gunnery officer in the United States Navy assigned for some period of time to the USS Pictor (AF-54). The decedent's testimony and interrogatory responses indicate that while deployed on the U.S.S. Pictor, the decedent was exposed to asbestos and asbestos containing material (Dkt. 92, 204-216).

In the affirmation in support of summary judgment by David E. Freed, Esq., dated March 10, 2020, Viking's attorney submits that ''Plaintiffs have produced no evidence that Patrick Henry was ever caused to be exposed to asbestos from, or ever even encountered a product manufactured by Viking." According to the moving affirmation, the decedent did not testify to any asbestos exposure from any Viking products and never mentioned the name "Viking" during his deposition. On two prior occasions. Viking's counsel invited Plaintiffs counsel to discontinue the action insofar as asserted against Viking (Dkt. Nos. 93, 94). Plaintiffs counsel apparently did not respond to defense counsel's requests. The sole basis asserted in support of summary judgment in Viking's favor is summarized in its memorandum of law.

"Here Plaintiffs cannot point to any sworn testimony that any product manufactured, sold or distributed by Viking contributed to Mr. Henry's alleged asbestos exposure. Neither Plaintiffs' Interrogatory Responses nor Mr. Henry's deposition testimony mention Viking at all. Mr. Henry himself never...