Convery v. AO Smith Water Products, Inc. (2009)

Our plain-English summary of Convery v. AO Smith Water Products, Inc. (New York Supreme Court, April 15, 2009).

Joseph Convery and his wife sued A.O. Smith Water Products and other defendants after he was diagnosed with mesothelioma in May 2008. Convery had worked for plumbing contractors. He testified that for about three to four months between 1962 and 1966 he worked as a welder's helper at the Ravenswood Powerhouse, in the same area as workers insulating cooling system pipes. He said the work was dusty and that he knew the insulation contained asbestos from its light gray color. He believed the insulators worked for Treadwell or Keasby, and recalled a toolbox bearing one of those names, though he could not swear to it. Treadwell Corporation moved for summary judgment, arguing he had not shown it was a cause of his illness and citing an earlier case where the plaintiff had no support that the insulation contained asbestos. The court denied the motion. It found his testimony about the asbestos insulation and his presence nearby raised factual issues, and uncertainty about which company's workers were involved did not require dismissal.

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: April 15, 2009
• Citation: 2009 NY Slip Op 30899(U)
• Stage: Summary judgment
• State: New York

Outcome. The trial court denied defendant Treadwell Corporation's motion for summary judgment dismissing plaintiffs' complaint and all cross-claims against it, finding fact issues on exposure.

What the court held. A plaintiff need not show the precise causes of his damages, only facts and conditions from which the defendant's liability may be reasonably inferred; uncertain identification of the insulators' employer goes to weight and does not require dismissal.

Issues decided: Causation, Product Identification.

The people and their exposure

• Joseph Convery: mesothelioma

Who	Work	Where	When	Products
Joseph Convery	welder's helper (power plants and utilities); worked near others using it	Ravenswood Powerhouse, New York	1962-1966	pipe and block insulation

The defendants

• Treadwell Corporation (contractor)
• A.O. Smith Water Products, Inc.

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• 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.

2009 NY Slip Op 30899(U)

JOSEPH CONVERY and CONSTANCE CONVERY, Plaintiffs,

v.

A.O. SMITH WATER PRODUCTS, INC., et. al., Defendants.

107171/08, Motion Seq. No. 001.

April 15, 2009.

Supreme Court of the State of New York, New York County.

DECISION & ORDER

SHERRY KLEIN HEITLER, Judge.

In this personal injury action, the defendant, Treadwell Corporation (hereinafter "Treadwell") seeks an order dismissing plaintiffs' complaint and all cross-claims against it in this action. Plaintiffs oppose this application. Plaintiff, Joseph Convery, had a long career working at various sites for plumbing contractors. In May of 2008, he was diagnosed with mesothelioma. He was deposed on June 3"', 4th and 5th of 2008. Mr. Convery testified that he worked as a welder's helper at the Ravenswood Powerhouse for approximately three to four months between 1962 and 1966. He claims that he worked in the same immediate work area as workers who were insulating pipes associated with the cooling system. Plaintiff contends that he knew the insulation contained asbestos because they were covering heating pipes and only asbestos was used to prevent people from getting burned at that time. He also stated that the atmosphere during the installation of the covering was quite dusty. Mr. Convery identified the individual insulators as employees of Treadwell or Keasby and recalled that Treadwell maintained a toolbox on the Ravenswood site. Specifically, plaintiff testified to the following:

Q. Now, these insulators, were they wearing uniforms or anything that identified what company they worked for?

A. No, not that I know of, not that I can remember.

Q. Did they have a shanty?

A. Yeah. They had the box, they had the shanty boxes, you know, where they put all their tools.

Q. They had a toolbox?

A. Yeah, they had a toolbox there.

Q. And was the name of the company on the toolbox?

A. As far as I can remember.

Q. As you sit here today, do you have a specific recollection of seeing the name of the insulation company on the toolbox?

A. It think it was Keasley and, what is it, Treadwell. There was a couple of insulators on the job. I don't know if some were working on the other side of the plant, some were working on our side of the plant.

(See, Plaintiffs' Exhibit A, Page 438, Lines 2-23.)

He also testified as follows:

Q. Well, the insulators that were working in your presence, could you identify who they were?

A. I think either Treadwell or Beasley or Treadwell, either one.

Q. Well, earlier you testified that you knew that Treadwell was at Ravenswood because you saw the name toolbox; is that correct?

A. Beasley I seen, I seen. Beasley or Treadwell, I think they were both there, I couldn't swear to it. (See, Plaintiffs' Exhibit A, Page 473, Lines 2-11.)

Plaintiff also testified that he knew asbestos was being used to insulate the pipes because he could see the material and knew it contained asbestos based on the color. As such, the following information was elicited at the deposition: Q. If I were holding in one hand a piece of insulation material that contained asbestos and in my other hand a piece of insulation material that didn't, would you be able to tell the difference?

A. Almost, absolutely.

Q. How would you do that?

A. How would I do it? Because asbestos, the asbestos was sort of a grayish material as far as I know, it's like a light gray. The other material would be, like, totally while which would have nothing to do as far as I know. If you show me two pieces of covering, I would pick out the asbestos covering for you.

(See, Plaintiffs' Exhibit A, Page 440, Lines 15-25; Page 441, Lines 1-2.)

Defendant asserts that plaintiff failed to identify Treadwell with any specificity as the proximate cause or as a substantial factor of his injuries and thus this action should be dismissed. In support of its motion, Treadwell argues that under Perdicaro v. A.S. Smith, 52 A.D.3d 300 (1st Dept. 2008), summary judgment must be granted because plaintiff has failed to raise a factual issue as to whether he was present at the same location at the same time as Treadwell, nor did he raise an issue as to whether the insulation he worked near contained asbestos.

The court does not agree. In Perdicaro v. A. O. Smith, (52 A.D.3d 300, 1st Dept. [2008], supra), the court found that the plaintiff offered no factual support that would reasonably suggest that the insulation he saw in use was asbestos-based. In the case at bar, although plaintiff was not able to definitively identify individual insulators as working for Treadwell, he knew that they worked for either Treadwell or Keasby. He also testified that he worked in the immediate work area as workers who were insulating pipes and using insulation that contained asbestos.

In Joseph Casale v. A.Q. Smith (Sup. Ct., NY Cty, July 23, 2007, Freedman, J., Index No. 104299/06), the court denied summary judgment to a defendant when plaintiff identified two gasket manufacturers but could not identify which gasket he specifically used at an exact location. The court held that if plaintiff mixed up the names of the manufacturers, at most it would go to the weight and probative value of his testimony but would not result in his case being dismissed. Further, in Knee v. A. W. Chesterton Co., 52 A.D.3d 355 (1st Dept., 2008), the court denied summary judgment based on issues of fact raised by testimony that decedent was exposed to asbestos from gasket material while working in the Brooklyn Navy Yard. The court finds that plaintiff's testimony raises issues of fact that preclude granting defendant, Treadwell, summary judgment. As the court held in Reid v. Georgia-Pacific Corp., 212 A.D.2d, 462, at 463 (1st Dept., 1995), "the plaintiff is not required to show the precise causes of his damages, but only to show facts and conditions from which defendants' liability may be reasonably inferred."

Accordingly, defendant's motion is denied.

This shall constitute the decision and order of the court.

Sources

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