Caligiuri v. AO Smith Corp. (N.Y. Sup. Ct., Jan. 9, 2024)

Our plain-English summary of Caligiuri v. AO Smith Corp. (New York Supreme Court, January 9, 2024).

Mario Caligiuri and Susan Caligiuri sued a number of companies in New York County, alleging that Mr. Caligiuri developed mesothelioma from asbestos exposure. This decision addressed only one defendant, QCP, Inc., formerly Bakers Pride Oven Company, which moved for summary judgment. The plaintiffs alleged that Mr. Caligiuri was exposed over a long period by scraping and cleaning Bakers Pride pizza ovens. Bakers Pride argued through an expert that exposure from scraping its ovens would be extremely low and so could not have caused his disease. The plaintiffs offered two expert reports saying years of exposure caused the illness. The court denied the motion. It said Bakers Pride had to affirmatively show its product could not have contributed to the injury, and it had not done so. The study its expert relied on did not account for the long volume and timeline of exposure and confirmed that asbestos is released when ovens are cleaned. The conflicting expert evidence raised fact questions for trial.

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: January 9, 2024
• Citation: 2024 NY Slip Op 30095(U)
• Stage: Summary judgment
• Unpublished opinion. Many courts limit citing unpublished opinions as precedent.
• State: New York

Outcome. The trial court denied defendant QCP, Inc. f/k/a Bakers Pride Oven Company's motion for summary judgment, so plaintiffs Mario and Susan Caligiuri's claims against it continue.

What the court held. A defendant seeking summary judgment on causation must affirmatively establish that its product could not have contributed to the plaintiff's injury; competing expert causation evidence raises a question of fact that precludes summary judgment.

Issues decided: Causation, Expert Testimony, Product Identification.

The people and their exposure

• Mario Caligiuri: mesothelioma

The defendants

• QCP, Inc. f/k/a Bakers Pride Oven Company, Inc. (manufacturer)

Other decisions in this case

Other rulings from the same court in the same case, in our library:

• Caligiuri v. AO Smith Corp. (January 8, 2024). The trial court denied defendant Olympic Glove & Safety Co.'s motion for summary judgment, so plaintiffs Mario and Susan Caligiuri's claims against Olympic continue.
• Caligiuri v. AO Smith Corp. (February 9, 2024). The court denied defendant QCP, Inc. f/k/a Bakers Pride Oven Company's motion to preclude plaintiffs' causation experts Drs. Moline, Frank and Zhang, so plaintiffs prevailed on the motion.

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 30095(U)

MARIO CALIGIURI, SUSAN CALIGIURI, Plaintiff,

v.

A.O. SMITH CORPORATION, AERCO INTERNATIONAL, INC., AII ACQUISITION LLC, BAKERS

PRIDE OVEN CO., INC., BAKERS PRIDE OVEN CO. LLC, BMCE INC., BRYAN STEAM LLC,

BURNHAM LLC, CARRIER CORPORATION, CRANE CO., DAV CORPORATION, DAVID

FABRICATORS OF NEW YORK, INC., ECR INTERNATIONAL, INC., FORT KENT HOLDINGS INC.,

FOSTER WHEELER ENERGY CORPORATION, GENERAL ELECTRIC COMPANY, GREENE, TWEED

& CO., INC., INDUSTRIAL HOLDINGS CORPORATION, INTERNATIONAL COMFORT PRODUCTS

LLC, ITT LLC, JOHN CRANE, INC., KOHLER COMPANY, LENNOX INDUSTRIES, INC.,MORSE TEC

LLC, OLYMPIC GLOVE & SAFETY CO., INC., PARAMOUNT GLOBAL, QCP, INC., UNION CARBIDE

CORPORATION, UTICA BOILERS, INC., WEIL-McLAIN INC., JOHN DOE 1 THROUGH JOHN DOE 75,

Defendant.

Index No. 190130/2022, Motion Seq. No. 004.

Motion October 24, 2023.

January 9, 2024.

Supreme Court, New York County.

DECISION + ORDER ON MOTION

ADAM SILVERA, J.S.C.

It is ordered that the instant motion to dismiss pursuant to CPLR 3212 is denied in accordance with the decision below. Here, defendant QCP, Inc. f/k/a Bakers Pride Oven Company, Inc.'s ("Bakers Pride") motion for summary judgment seeking to dismiss all claims against it on the basis that it has affirmatively established that plaintiff Mario Caligiuri could not have been exposed to asbestos from a Bakers Pride product and that such product could not have caused his mesothelioma, and that moving defendant's prior motion to preclude plaintiffs' experts justifies dismissal. This Court has denied defendant's motion to preclude in accordance with its Decision/Order dated Jan. 5, 2024 (see mot. 003), removing that as a basis for dismissal.

Regarding Mr. Caligiuri's exposure, moving defendant offers expert testimony to support its position that any exposure to asbestos from scraping Bakers Pride pizza ovens would be extremely low. Moving defendant offers a secondary expert report, based on the prior report, to argue that such low levels of exposure necessarily could not have caused Mr. Caligiuri's mesothelioma.

In opposition, plaintiff highlights Mr. Caligiuri's high volume of exposure to scraping and cleaning Bakers Pride pizza ovens, and proffers two expert reports to support Mr. Caligiuri's illness being caused by yearslong exposure to such ovens. 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 Bakers Pride 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 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 judgment. Here, defendant Bakers Pride has not affirmatively established that its product could not have caused Mr. Caligiuri's illness. The study that it bases Mr. Caligiuri's estimated exposure level on does not account for the volume and timeline of exposure at issue herein which is significantly long. In fact, the study cited by defendant Bakers Pride's expert confirms that there is asbestos release from cleaning pizza ovens. Moving defendant's evidentiary support is insufficient to meet its burden on a motion for summary judgment, and as set forth by the Appellate Division in Reid and Dyer, supra. Moreover, plaintiff has offered conflicting evidence regarding causation from these levels of exposure and such, has raised sufficient issues of fact to preclude summary judgment.

Accordingly, it is

ORDERED that defendant Bakers Pride's motion for summary judgment is 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