Howard v. A.O. Smith Water Prods.

212 A.D.3d 924

181 N.Y.S.3d 380

Albert O. HOWARD et al., Respondents.

v. A.O. SMITH WATER PRODUCTS et al., Defendants,andArmstrong Pumps Inc., Appellant.

534550

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: November 21, 2022

Decided and Entered: January 5, 2023

The Cook Group, PLLC, New York City (Ryan W. Sweeney of counsel), for appellant.

Belluck & Fox, LLP, New York City (Seth A. Dymond of counsel), for respondents.

Before: Egan Jr., J.P., Aarons, Reynolds Fitzgerald, Fisher and McShan, JJ.

MEMORANDUM AND ORDER

McShan, J. Appeal from an order of the Supreme Court (Erin P. Gall, J.), entered December 13, 2021 in Schenectady County, which denied a motion by defendant Armstrong Pumps Inc. for summary judgment dismissing the complaint against it.

Plaintiff Albert O. Howard was diagnosed with mesothelioma in December 2020. Howard and his spouse, derivatively, commenced this action alleging, among other things, that his illness was caused by his exposure to asbestos products manufactured by defendant Armstrong Pumps Inc. (hereinafter defendant), among others, while serving on different submarines during his career in the U.S. Navy from 1961 through 1978. After joinder of issue and discovery, defendant moved for summary judgment dismissing the complaint against it, contending, among other things, that Howard could have not been exposed to any products it manufactured during his service in the U.S. Navy because defendant only came into existence in 1965, which postdated the commissioning of the vessels Howard served on. Plaintiffs opposed the motion, arguing that Howard unequivocally identified defendant's pumps as a source of his asbestos exposure and numerous questions of fact exist precluding summary judgment. Supreme Court denied defendant's motion, and defendant appeals.

"In order to establish entitlement to judgment as a matter of law, defendant[ ] bore the initial burden of demonstrating that [its] respective products ‘could not have contributed to the causation’ of [Howard]’s asbestos-related injuries" ( O'Connor v. Aerco Intl., Inc., 152 A.D.3d 841, 842, 57 N.Y.S.3d 766 [3d Dept. 2017] [citation omitted], quoting Matter of New York City Asbestos Litig., 116 A.D.3d 545, 545, 984 N.Y.S.2d 45 [1st Dept. 2014] ; see Reid v. Georgia–Pacific Corp., 212 A.D.2d 462, 463, 622 N.Y.S.2d 946 [1st Dept. 1995] ). Defendant could not prevail on its motion for summary judgment by "merely pointing to gaps in ... plaintiff[s’] proof" ( O'Connor v. Aerco Intl., Inc., 152 A.D.3d at 842, 57 N.Y.S.3d 766 ; see Dyer v. Amchem Prods. Inc., 207 A.D.3d 408, 409, 171 N.Y.S.3d 498 [1st Dept. 2022] ; Koulermos v. A.O. Smith Water Prods., 137 A.D.3d 575, 576, 27 N.Y.S.3d 157 [1st Dept. 2016] ). In other words, "[defendant] could not simply argue that plaintiff[s] could not affirmatively prove causation, but rather it had to affirmatively prove, as a matter of law, that there was no causation" ( Dyer v. Amchem Prods. Inc., 207 A.D.3d at 409, 171 N.Y.S.3d 498 ; see Matter of New York City Asbestos Litig., 146 A.D.3d 700, 700, 44 N.Y.S.3d 911 [1st Dept. 2017] ).

Viewing the evidence in the light most favorable to plaintiffs and granting them the benefit of every favorable inference (see O'Connor v. Aerco Intl., Inc., 152 A.D.3d at 843, 57 N.Y.S.3d 766 ; Wells v. 3M Co., 137 A.D.3d 1556, 1559, 28 N.Y.S.3d 746 [3d Dept. 2016] ), we find that defendant's submissions fail to conclusively establish that its products could not have been present on the U.S. Navy vessels that Howard worked on during the period following defendant's incorporation, and that its products could not have caused Howard's injuries. Howard's lengthy deposition testimony submitted by defendant in support of its motion describes his extensive career in the Navy and his service on various nuclear submarines. Relevant to this appeal, Howard testified to his familiarity with the various components in those vessels including a wide range of pumps for different engineering systems. Howard directly identified defendant's pumps among the many different manufacturers that he observed during his service and noted that defendant's pumps were tagged with the Armstrong name and were generally "Navy gray." Although he was unspecific as to the precise vessels where he observed defendant's pumps, Howard generally noted that he believed he encountered them on each of the vessels he served on. He also elaborated that defendant's pumps were predominantly located in the "propulsion plant" and "lube oil or condensate" systems. According to Howard, his duties aboard these various vessels required, among other things, that he directly supervise maintenance on defendant's pumps, which included asbestos-containing gaskets, packing and insulation. Howard stated that he would work in the immediate vicinity of the pumps when the gaskets were removed and scraped from the pumps, and when packing and insulation on the pumps was removed and replaced. Howard noted that defendant's pumps would handle whatever temperature of water called for in the particular system that the pump was being utilized, and that would have included "hot liquids that would have required insulation and that insulation would most certainly be in ... asbestos blankets." Howard also stated that defendant's manual was referenced any time that work was called for on the pumps.

Howard further explained that nuclear submarines, such as those that he was assigned to, were "overhaul[ed]" every three to five years, which generally entailed the repair or replacement of various pieces of machinery, including the various pumps onboard.

In support of its motion, defendant principally relies upon the three-page affidavit of Jeffrey Martin, a compliance/warranty engineer who began working for defendant in 2007. However, we find that his affidavit and the representations therein fail to establish the absence of a material question of fact as to the presence of defendant's pumps on those vessels Howard served on after defendant came into existence (see Matter of New York City Asbestos Litig., 123 A.D.3d 498, 499, 1 N.Y.S.3d 20 [1st Dept. 2014] ; Knee v. A.W. Chesterton Co., 52 A.D.3d 355, 355–356, 861 N.Y.S.2d 286 [1st Dept. 2008] ). Howard's failure to specify the exact vessels where he observed defendant's pumps is not fatal to plaintiffs’ action, and the testimony concerning the routine overhauls of the vessels creates an issue of fact as to whether defendant's pumps could have made their way on the relevant vessels after they were first commissioned (see Koulermos v. A.O. Smith Water Prods....