Dollas v. WR Grace & Co. (1996)

Our plain-English summary of Dollas v. WR Grace & Co. (New York Supreme Court, Appellate Division, March 5, 1996).

Joanna Dollas, for the estate of Gus Dollas, and Joseph Gargano, as executor of Joseph Ventarino's estate, sued W.R. Grace and others. They said the two men worked on the USS Constellation at the Brooklyn Navy Yard and died of mesothelioma caused by asbestos exposure. The question was whether there was enough evidence that the men were exposed to Grace's fireproofing product, Monokote, to avoid summary judgment. Walter Bock, a marine machinist who worked on the ship partly at the same time as the decedents, testified in a deposition in his own case that Monokote was used as fireproofing and was sprayed all the time inside the gun mounts and other areas. The trial court granted Grace summary judgment, saying Bock's testimony was contradicted by other Navy Yard cases it had tried and that government specifications did not list Monokote. The Appellate Division reversed. It held the trial court wrongly took judicial notice of a disputed fact and wrongly judged Bock's credibility, which is for the trier of fact at 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, Appellate Division, 1st Dept.
• Decided: March 5, 1996
• Citation: 225 A.D.2d 319
• Stage: Appeal from summary judgment
• State: New York

Outcome. The Appellate Division reversed the grants of summary judgment to W.R. Grace against plaintiffs Dollas and Gargano, finding a fact question on whether the decedents were exposed to Grace's Monokote.

What the court held. A court may not take judicial notice of a disputed fact, or reject sworn deposition testimony as not credible, on summary judgment; conflicts between testimony and other evidence go to weight and must be resolved by the trier of fact.

Issues decided: Trial Procedure and Discovery, Product Identification.

Why this case is relevant

In this decision, the Appellate Division, First Department, reversed summary judgment that had been granted to W.R. Grace in two Brooklyn Navy Yard mesothelioma cases. It held that the trial court was wrong to take judicial notice that Grace's Monokote was not used on the ship when a witness had testified unequivocally that it was. It also held that the trial court should not have rejected that witness's deposition testimony as unworthy of belief. In reaching that result, the court applied settled rules from earlier appellate decisions, including its own decision in Cochrane v Owens-Corning Fiberglas Corp.: a litigant's deposition testimony can raise an issue of fact, and any conflict between testimony and other evidence goes to weight, which the trier of fact decides.

The later decisions we have collected that cite it are mostly New York Supreme Court rulings in asbestos cases. Those courts quote it for that routine summary judgment standard, often when leaving conflicting or equivocal testimony for a jury. Several said the rule applies with particular force in asbestos cases, where witnesses try to recall remote events. A 2017 Appellate Division decision cited it for a different point: its quoted description of mesothelioma as an exceedingly rare disease whose only known cause is asbestos exposure.

This section was drafted with the assistance of WARD, our Worldwide Asbestos Reference Desk, from the opinion and the later decisions in our library that cite it. It is not legal advice.

The people and their exposure

• Gus Dollas: mesothelioma; died

• Joseph A. Ventarino: mesothelioma; died

The defendants

• W.R. Grace and Company (manufacturer) · its asbestos trust

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• O'brien v. National Gypsum Co. (U.S. Court of Appeals, Second Circuit, 1991). The Second Circuit affirmed the jury verdict and judgment against Celotex, finding the exposure evidence sufficient and any hearsay error harmless; the plaintiff's cross-appeal on damages remained stayed by Celotex's bankruptcy.

Later decisions citing this one

56 later decisions in our library cite this one. The 30 from the highest courts, newest first:

• Mtr OF Nyc Asbestos Litig. (New York Supreme Court, Appellate Division, 1st Dept., 2017). The Appellate Division affirmed the judgment for Ford Motor Company, upholding the trial court's order setting aside the jury's verdict for plaintiff Mary Juni, and dismissed the appeal from the order as subsumed in the appeal from the judgment.
• Horvath v. AW Chesterton Co. (New York Supreme Court, 2023). The trial court denied defendant Ameron International Corporation's motion for summary judgment, so plaintiff Susan Horvath's claims over Rudolf Horvath's exposure to Bondstrand pipes go forward.
• Rasso v. Avon Prods., Inc. (New York Supreme Court, 2023). The court denied defendant Colgate-Palmolive's motion for summary judgment in its entirety, so the plaintiff's claim against Colgate continues.
• Katechis v. Allied Bldg. Prods. Corp. (New York Supreme Court, 2022). The court denied Allied Building Products Corp.'s motion for summary judgment, so plaintiff Agathi Katechis's claims against Allied go forward.
• Theophil v. AO Smith Water Prods. Co. (New York Supreme Court, 2022). The court denied defendant Mario & DiBono Plastering Co.'s motion for summary judgment, so plaintiff William Theophil's claims against it continue.
• Kriz v. Air & Liquid Sys. Corp. (New York Supreme Court, Rockland, 2021). The court granted the ten unopposed summary judgment motions of Eaton Hydraulics, Riley Power, Foster Wheeler, ViacomCBS, General Electric, Spence Engineering, GEA Mechanical, FMC, Velan Valve and Neles-Jamesbury, and denied the motions of Fisher Scientific and Armstrong International, so the plaintiff's claims against those two proceed.
• Rivera v. Ericksson (In re New York City Asbestos Litigation) (New York Supreme Court, 2020). The trial court denied Ericksson, Inc.'s motion for summary judgment, which sought dismissal of the plaintiffs' complaint and all cross-claims, because it did not make a prima facie showing on causation.
• Germain v. Johnson & Johnson (In re New York City Asbestos Litigation) (New York Supreme Court, 2018). The trial court denied Johnson & Johnson and Johnson & Johnson Consumer Inc.'s motion for summary judgment, so the plaintiffs' negligence, strict liability, consortium and punitive damages claims go to trial.
• Hernandez-Vega v. Air & Liquid Sys. Corp. (New York Supreme Court, 2016). The court denied Flowserve's summary judgment motion on the valve claims, finding it did not meet its burden and fact issues remained for the jury, but dismissed plaintiff's claims relating to Rockwell pumps because Flowserve never made them.
• DeMartino v. Aurora Pump Co. (In re New York City Asbestos Litigation) (New York Supreme Court, 2016). The court denied Aurora Pump Company's motion for summary judgment against plaintiffs Patrick and Joy DeMartino and directed the parties to proceed with discovery before the Special Master.
• Bartolone v. Union Carbide Corp. (In re New York City Asbestos Litigation) (New York Supreme Court, 2016). The court denied Union Carbide's motion for summary judgment in its entirety, so plaintiff's estate's claims against Union Carbide go forward to trial.
• Koulermos v. Treadwell Corp. (In re New York City Asbestos Litig.) (New York Supreme Court, 2015). The court denied Treadwell Corporation's summary judgment motion to the extent it sought dismissal of co-defendant National Grid's cross-claims, and held the motion moot as to the plaintiffs' own claims, which they had withdrawn opposition to.
• Hernandez-Vega v. Fisher Controls Int'l (In re New York City Asbestos Litigation) (New York Supreme Court, 2015). The court denied Fisher Controls' motion for summary judgment on plaintiff Hernandez-Vega's claims, but dismissed the breach of warranty, market share liability and concert of action counts, and denied dismissal of the punitive damages count with leave to renew.
• Smyth v. Crane Co. (In re New York City Asbestos Litigation) (New York Supreme Court, 2015). The trial court denied Crane Co.'s motion for summary judgment, so plaintiff Annie Smyth's claims against Crane continue toward a jury.
• Storey v. Morse Diesel (In re New York City Asbestos Litigation) (New York Supreme Court, 2015). The court denied general contractor Morse Diesel's motion for summary judgment dismissing the Labor Law § 200 and negligence claims of plaintiffs John and Candace Storey.
• Ricci v. Cleaver-Brooks (In re New York City Asbestos Litigation) (New York Supreme Court, 2015). The court denied Cleaver-Brooks' motion for summary judgment dismissing plaintiff Mark Ricci's complaint and all claims and cross-claims against it, so the plaintiff won and the case goes to trial.
• Scainetti v. BW/IP (Matter of New York City Asbestos Litig.) (New York Supreme Court, 2015). The trial court denied BW/IP's motion for summary judgment seeking dismissal of plaintiff Jack Scainetti's claims, so the claims against BW/IP go forward.
• Lefrak v. American Biltrite (Matter of New York City Asbestos Litig.) (New York Supreme Court, 2015). The court denied defendant American Biltrite's motion for summary judgment, so plaintiff Richard Lefrak's claims against it continue.
• Galasso v. BF Goodrich (Matter of New York City Asbestos Litig.) (New York Supreme Court, 2015). The trial court denied BF Goodrich's motion for summary judgment dismissing the Galassos' complaint and all claims and cross-claims against it, so plaintiffs prevailed on the motion.
• Storey v. AO Smith Water Products Co. (New York Supreme Court, 2015). The court denied defendant Goodrich Corporation's motion for summary judgment, so plaintiff John Storey's claim against Goodrich continues.
• Adler v. 3M Co. (New York Supreme Court, 2014). The court denied Gardner Denver's motion for summary judgment, finding a triable issue of fact on whether Mr. Adler was exposed to asbestos from Gardner Denver air compressors, so plaintiffs John and Elaine Adler prevailed on the motion.
• Armanious v. 3M Co. (New York Supreme Court, 2014). The court denied Union Carbide Corporation's motion for summary judgment, so the plaintiff estate's claims against it continue, because a jury could infer that Mr. Nilsson was exposed to its Calidria asbestos through National Gypsum's Gold Bond joint compound.
• Bailen v. Air & Liquid Sys. Corp. (New York Supreme Court, 2014). The court denied Philips Electronics North American Corporation's (Magnavox) motion for summary judgment, so plaintiffs Eddie Bailen and Rena Bailen's claims against it continue.
• Baruch v. Baxter Healthcare Corp. (New York Supreme Court, 2014). The court denied Baxter Healthcare Corporation's motion for summary judgment in its entirety, so plaintiffs Ester and Nerye Baruch's claims against it continued.
• Dorfman v. Air & Liquid Sys. Corp. (New York Supreme Court, 2014). The trial court denied defendant United Conveyor Corporation's motion for summary judgment, so plaintiffs (the estate and widow of Linton Dorfman) kept their claims against it.
• Friedman v. AO Smith Wter Prod. Co. (New York Supreme Court, 2014). The court denied defendant Appleton Electric LLC's motion for summary judgment, finding a triable issue whether Appleton's fiber fillers contained asbestos, so plaintiffs Stanley and Phyllis Friedman prevailed on the motion.
• Noble v. AO Smith Water Prods. Co. (New York Supreme Court, 2014). The trial court denied Lennox Industries' motion for summary judgment, so plaintiff Harriet Noble's claims against Lennox continue.
• Proctor v. Alcoa, Inc. (New York Supreme Court, 2014). The trial court denied Duro Dyne Corporation's motion for summary judgment, so plaintiffs James and Joy Proctor's claims against Duro Dyne go forward.
• Smith v. 3M Company (New York Supreme Court, 2014). The court denied Con Ed's motion for summary judgment, leaving plaintiffs' claims and the cross-claims against Con Ed in place, because a triable issue existed on whether Con Ed could have prevented Mr. Smith's injuries.
• Baruch v. Baxter Healthcare Corp. (New York Supreme Court, 2013). The court denied Fisher Scientific Company's motion for summary judgment, so plaintiffs Ester and Nerye Baruch's claims against Fisher continue.

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.

225 A.D.2d 319 (1996)

639 N.Y.S.2d 323

Joanna Dollas, Individually and as Administratrix of The Estate of Gus Dollas, Deceased,

Appellant,

v.

W.R. Grace and Company, Respondent, etal., Defendants

Joseph R. Gargano, as Executor of Joseph A. Ventarino, Deceased, Appellant,

v.

W.R. Grace and Company, Respondent, etal., Defendants

March 5, 1996

Appellate Division of the Supreme Court of the State of New York, First Department.

Concur — Sullivan, J. P., Milonas, Ellerin, Rubin and Kupferman, JJ.

*320These appeals involve two of the more than 700 personal injury and wrongful death cases allegedly resulting from exposure to asbestos-containing products at the Brooklyn Navy Yard. Plaintiffs' decedents, who are alleged to have worked on the USS Constellation, succumbed to mesothelioma, "an exceedingly rare disease * * * whose only known cause is exposure to asbestos" (O'Brien v National Gypsum Co., 944 F.2d 69, 72). At issue is whether plaintiffs presented sufficient evidence to raise a question of fact with respect to decedents' exposure to asbestos from defendant Grace's product, "Monokote", so as to preclude summary judgment (Hartford Acc. & Indem. Co. v Wesolowski, 33 N.Y.2d 169; Di Sabato v Soffes, 9 AD2d 297, 300).

320

In a deposition taken in connection with his own action arising out of asbestos exposure, Walter Robert Bock, a marine machinist, testified that he also worked aboard The Constellation, in part contemporaneously with plaintiffs' decedents. Bock testified that Monokote was used as fireproofing and that spraying of this material was going on "all of the time * * * inside the gun mounts, and other areas of the ship".

In granting Grace's motion for summary judgment against Gargano, Supreme Court stated, "Mr. Bock's testimony that Monokote was on two ships in [Brooklyn] Navy Yard is belied by all the other evidence in the Navy Yard cases that this Court has tried. Gov't. specs. do not include Monokote as an approved product". Two weeks later, the court granted Grace's motion for summary judgment against Dollas "in accordance with decision relating to [Gargano]".

Supreme Court erred in taking judicial notice that Monokote was not used on The Constellation in the face of unequivocal testimony that it was. A court may only apply judicial notice to matters "of common and general knowledge, well established and authoritatively settled, not doubtful or uncertain. The test is whether sufficient notoriety attaches to the fact to make it proper to assume its existence without proof" (Ecco High Frequency Corp. v Amtorg Trading Corp., 81 NYS2d 610, 617, affd 274 App Div 982).

*321It was also inappropriate to reject, as being unworthy of belief, the testimony of Walter Robert Bock, offered in opposition to Grace's motion. The 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 (Harris v City of New York, 147 AD2d 186, 189). 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 (Rivera v City of New York, 212 AD2d 403, 404). As we recently noted in Cochrane v Owens-Corning Fiberglas Corp. (219 AD2d 557, 559-560), "Supreme Court's conclusion that plaintiff's allegations are `not credible' therefore constitutes the impermissible determination of an issue that must await trial (CPLR 3212 [c]; Siegel, NY Prac § 284, at 413; § 271, at 400 [2d ed]). The function of a court entertaining a motion for summary judgment is one of issue finding, not issue determination (Sillman v Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 404; Wiener v Ga-Ro Die Cutting, 104 AD2d 331, 333, affd 65 N.Y.2d 732), and any conflict between plaintiff's allegations and the documentary evidence merely presents an issue of credibility for resolution at trial (Cohn v Lionel Corp., 21 N.Y.2d 559, 563; see also, Patrolmen's Benevolent Assn. v City of New York, 27 N.Y.2d 410, 415 * * *)."

321

Sources

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