Bassier v. AO Smith Water Prods. Co. (2023)

Our plain-English summary of Bassier v. AO Smith Water Prods. Co. (New York Supreme Court, July 25, 2023).

Collin Bassier sued a large group of companies after he was diagnosed with pleural mesothelioma in January 2019. He alleged exposure to asbestos-containing products during his work as an electrician. He died in October 2021. This decision concerned only one defendant, Burnham, LLC, which moved for summary judgment, arguing he could not show exposure to its products. The opinion says Mr. Bassier worked from 1981 to 1984 at his stepfather's business, Hamilton Heating & AC, removing residential boilers. He named Burnham boilers as asbestos-containing in his interrogatory answers, and in his deposition he gave a name spelled phonetically as "Burningham" when asked about boiler brands. The court denied the motion. It held that Burnham had to prove its products could not have contributed to his illness and did not try to show they contained no asbestos. Deposition testimony was enough to raise a fact issue for a jury.

We wrote this summary from the court's opinion with the help of AI. It is not the court's wording, and it is not legal advice. The full opinion is below.

The decision

• Court: New York Supreme Court
• Decided: July 25, 2023
• Citation: 2024 NY Slip Op 30838(U)
• Stage: Summary judgment
• Unpublished opinion. Many courts limit citing unpublished opinions as precedent.
• State: New York

Outcome. The trial court denied defendant Burnham, LLC's motion for summary judgment, so plaintiff Bassier's claims against Burnham remain pending.

What the court held. A defendant seeking summary judgment must affirmatively establish that its product could not have contributed to the plaintiff's injury; it cannot simply argue the plaintiff lacks proof. Plaintiff's deposition testimony identifying the product is enough to raise a fact issue.

Issues decided: Causation, Trial Procedure and Discovery, Product Identification.

The people and their exposure

• Collin Bassier: pleural mesothelioma; died

Who	Work	Where	When	Products
Collin Bassier	removing existing residential boilers (construction)	Hamilton Heating & AC	1981 to 1984	Burnham Boilers

The defendants

• Burnham, LLC (manufacturer)

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Sason v. Dykes Lumber Co., Inc. (New York Supreme Court, Appellate Division, 1st Dept., 2023). The Appellate Division affirmed the denial of Dykes Lumber Company's summary judgment motion, so plaintiff Raphael Sason's claims against Dykes Lumber continue.
• Reid v. Georgia-Pac. Corp. (New York Supreme Court, Appellate Division, 1st Dept., 1995). The Appellate Division affirmed the denial of Rapid-American Corporation's motion for summary judgment, so plaintiff Kenneth Reid's claim against it continues.

The court's opinion

The text below is Google Scholar's copy of the court's opinion, a public record. Numbers in brackets, such as [*921], mark where each page of the printed reporter begins.

2024 NY Slip Op 30838(U)

GEM BASSIER, Plaintiff,

v.

A.O. SMITH WATER PRODUCTS CO, ABB, INC. INDIVIDUALLY AND AS SUCCESSOR IN INTEREST

TO ITE CIRCUIT BREAKERS, INC, AIR & LIQUID SYSTEMS CORPORATION, AS SUCCESSOR-BY-

MERGER TO BUFFALO PUMPS, INC, AMCHEM PRODUCTS, INC., N/K/A RHONE POULENC AG

COMPANY, N/K/A BAYER CROPSCIENCE INC, BORGWARNER MORSE TEC LLC, BRYANT

HEATING & COOLING SYSTEMS, BURNHAM, LLC, INDIVIDUALLY, AND AS SUCCESSOR TO

BURNHAM CORPORATION, BW/IP, INC. AND ITS WHOLLY OWNED SUBSIDIARIES, CARRIER

CORPORATION, CATERPILLAR, INC., CBS CORPORATION, A DELAWARE CORP., F/K/A VIACOM

INC., SUCCESSOR BY MERGER TO CBS CORPORATION, A PENNSYLVANIA CORP., F/K/A

WESTINGHOUSE ELECTRIC CORP., AS SUCCESSOR IN INTEREST TO THE BRYANT ELECTRIC

COMPANY, CBS CORPORATION, F/K/A VIACOM INC., SUCCESSOR BY MERGER TO CBS

CORPORATION, F/K/A WESTINGHOUSE ELECTRIC CORPORATION, CERTAINTEED

CORPORATION, CLEAVER BROOKS COMPANY, INC., COMPUDYNE CORPORATION,

INDIVIDUALLY, AND AS SUCCESSOR TO YORK SHIPLEY, INC, CRANE CO, CROSBY VALVE LLC,

EATON CORPORATION, AS SUCCESSOR-IN-INTEREST TO CUTLER-HAMMER, INC, FLOWSERVE

US, INC. SOLELY AS SUCCESSOR TO ROCKWELL MANUFACTURING COMPANY, EDWARD

VALVE, INC., NORDSTROM VALVES, INC., EDWARD VOGT VALVE COMPANY, AND VOGT VALVE

COMPANY, FMC CORPORATION, ON BEHALF OF ITS FORMER CHICAGO PUMP & NORTHERN

PUMP BUSINESSES, FORT KENT HOLDINGS, INC., FORMERLY KNOWN AS DUNHAM-BUSH, INC.,

FULTON BOILER WORKS, INC, GARDNER DENVER, INC, GENERAL ELECTRIC COMPANY, GOULD

ELECTRONICS INC, GOULDS PUMPS LLC, GRINNELL LLC, HONEYWELL INTERNATIONAL, INC.,

F/K/A ALLIED SIGNAL, INC./BENDIX, IMO INDUSTRIES, INC. ITT LLC., INDIVIDUALLY AND AS

SUCCESSOR TO BELL & GOSSETT AND AS SUCCESSOR TO KENNEDY VALVE MANUFACTURING

CO., INC., KEELER-DORR-OLIVER BOILER COMPANY, KOHLER CO, LENNOX INDUSTRIES, INC,

LEVITON MANUFACTURING CO., INC, PEERLESS INDUSTRIES, INC, PFIZER, INC. (PFIZER),

RHEEM MANUFACTURING COMPANY, ROCKWELL AUTOMATION, INC., AS SUCCESSOR IN

INTEREST TO ALLEN-BRADLEY COMPANY, LLC, ROPER PUMP COMPANY, SCHNEIDER

ELECTRIC USA, INC. FORMERLY KNOWN AS SQUARE D. COMPANY, SIEMENS INDUSTRY, INC.,

SUCCESSOR IN INTEREST TO SIEMENS ENERGY & AUTOMATION, INC, SLANT/FIN

CORPORATION, U.S. RUBBER COMPANY (UNIROYAL), UNION CARBIDE CORPORATION, UTICA

BOILERS, INC., INDIVIDUALLY AND AS SUCCESSOR TO UTICA RADIATOR CORPORATION,

VELAN VALVE CORPORATION, WARREN PUMPS, LLC, Defendant.

Index No. 190088/2019, Motion Seq. No. 005.

July 25, 2023.

March 13, 2024.

Supreme Court, New York County.

DECISION + ORDER ON MOTION

ADAM SILVERA, J.S.C.

It is ordered that the instant motion for summary judgment seeking dismissal of this action, pursuant to CPLR § 3212, is denied for the reasons set forth below.

Here, defendant Burnham, LLC (Burnham) argues that plaintiff Collin Bassier (Mr. Bassier) failed to establish exposure to its alleged asbestos-containing products. Mr. Bassier was diagnosed with pleural mesothelioma on January 14, 2019 and commenced this action on April 8, 2019. Mr. Bassier alleges he suffered personal injuries resulting from his exposure to asbestos-containing products manufactured by various companies during his work as an electrician. He served his Responses to Interrogatories on April 16, 2019, and was deposed on May 22-24, 2019 and August 12-13, 2019. Mr. Bassier passed away on October 10, 2021.

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". Winegrad v New York 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 (1st Dep't 1992), citing Dauman Displays, Inc. v Masturzo, 168 AD2d 204 (1st Dep't 1990). The court's role is "issue-finding, rather than issue-determination". Sillman v Twentieth Century-Fox 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 plaintiff's injury". Reid v Georgia-Pacific Corp., 212 AD2d 462, 463 (1st Dep't 1995).

The appropriate standard at summary judgment for moving defendant Burnham can be found in 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 NYSlipOp 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 judgment. The Court notes that Mr. Bassier was born and raised in Jamaica and emigrated to America in his teenage years to work at his stepfather's business, Hamilton Heating & AC, from 1981 to 1984. His work consisted of removing existing residential boilers. Mr. Bassier identified Burnham Boilers as an asbestos-containing product in his Verified Answers to Interrogatories. See Affirmation in Opposition to Defendant Burnham's Motion for Summary Judgment, Exh. 4, Plaintiff's Response to Defendants' Fourth Amended Interrogatories and Request for Production of Documents, p. 12. In his deposition testimony, when asked if he knew the brand name, trade name, or manufacturer name of the boilers he removed during his time at Hamilton, Mr. Bassier answered, inter alia, "Burningham", which was spelled phonetically as annotated in the deposition transcript. See Affirmation in Opposition, Exh. 3, Depo. Tr. of Collin Bassier, dated May 22, 2019, p. 91, ln. 23. The Appellate Division, First Department, has held that "[t]he deposition testimony of a litigant is sufficient to raise an issue of fact so as to preclude the grant of summary judgment dismissing the complaint. The assessment of the value of a witnesses' testimony constitutes an issue for resolution by the trier of fact, and any apparent discrepancy between the testimony and the evidence of record goes only to the weight and not the admissibility of the testimony." Dollas v W.R. Grace and Co., 225 AD2d 319, 321 (1st Dep't 1996) (internal citations omitted).

Further, defendant Burnham makes no attempt to meet their initial burden on a motion for summary judgment by proving that their products did not contain asbestos. Thus, moving defendant has failed to "establish that its products could not have contributed to the causation of plaintiff's injury." Reid v Georgia-Pacific Corp., supra. As conflicting evidence has been presented herein, and a reasonable juror could determine that Mr. Bassier was exposed to asbestos-containing boilers manufactured by defendant Burnham from his work removing boilers, and that such exposure could have contributed to his fatal illness, sufficient issues of fact exist to preclude summary judgment.

Accordingly it is

ORDERED that defendant Burnham, LLC's motion for summary judgment denied in its entirety: and it is further ORDERED that within 30 days of entry plaintiff shall serve all parties with a copy of this Decision/Order with notice of entry. This constitutes the Decision/Order of the Court.

Sources

• The opinion on Google Scholar
• New York asbestos laws
• New York asbestos exposure sites