Dorfman v. Air & Liquid Sys. Corp. (2014)

Our plain-English summary of Dorfman v. Air & Liquid Sys. Corp. (New York Supreme Court, October 23, 2014).

Lisette Dorfman, as executrix of the estate of her husband Linton Dorfman and individually, sued several companies in an asbestos personal injury case. Mr. Dorfman was diagnosed with mesothelioma in May 2013 and died in May 2014. He worked as a laborer for about eight months in the early 1960s on the initial construction of Units 4 and 5 at Con Edison's Astoria powerhouse. He testified that he cleaned up debris left by other trades who insulated pipes and equipment with asbestos blankets, gaskets and cement. Defendant United Conveyor Corporation moved for summary judgment, arguing he never identified any of its products as a source of exposure. Plaintiffs responded with the company's admission and shipping schematics showing it supplied ash conveying equipment containing asbestos cement and gaskets to the Astoria powerhouse at that time. The court denied the motion. It found that a jury could reasonably infer exposure to the company's products, given his daily work at that site and the documents. It distinguished two earlier cases where the plaintiffs' exposure to the defendant's equipment was not shown.

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: October 23, 2014
• Citation: 2014 NY Slip Op 32780(U)
• Docket: Docket No. 190214/13, Motion Seq. 007
• Stage: Summary judgment
• State: New York

Outcome. 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.

What the court held. Where a plaintiff worked daily on a site's construction and was exposed to debris from various trades, and documents show the defendant's asbestos-containing equipment was installed there at that time, a jury may infer exposure to the defendant's product even without specific product identification.

Issues decided: Wrongful Death and Survival, Product Identification.

The people and their exposure

• Linton Dorfman: mesothelioma; died

Who	Work	Where	When	Products
Linton Dorfman	laborer (power plants and utilities); worked near others using it	Con Edison's Astoria powerhouse, Units 4 and 5, New York	early 1960's	gaskets and packing, insulating cement, asbestos textiles, asbestos blankets, gaskets, cement, ash conveying equipment (United Conveyor Corporation)

The defendants

• United Conveyor Corporation (manufacturer)
• Air & Liquid Systems Corp.

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Dollas v. WR Grace & Co. (New York Supreme Court, Appellate Division, 1st Dept., 1996). 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.

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.

2014 NY Slip Op 32780(U)

LISETTE DORFMAN, as Executrix for the Estate of LINTON DORFMAN, and LISETTE DORFMAN,

Individually, Plaintiffs,

v.

AIR & LIQUID SYSTEMS CORP., etal., Defendants.

Docket No. 190214/13, Motion Seq. 007.

October 23, 2014.

Supreme Court, New York County.

DECISION & ORDER

SHERRY KLEIN HEITLER, Judge.

In this asbestos personal injury action, defendant United Conveyor Corporation ("UCC") moves pursuant to CPLR 3212 for summary judgment dismissing the complaint and all cross-claims asserted against it on the ground that plaintiffs' decedent Linton Dorfman failed to identify a UCC product as a source of his alleged asbestos exposure. For the reasons set forth below, UCC's motion is denied.

Mr. Linton commenced this action in June of 2013[1] and was deposed in July and December of 2013.[2] Relevant to this motion, Mr. Linton worked as a laborer at Con Edison's Astoria powerhouse for approximately eight months during the early 1960's on the initial construction of Units 4 and 5. Among other things Mr. Linton testified that he was exposed to asbestos from debris left behind by other trades who insulated the pipes and equipment using asbestos blankets, gaskets, and cement. UCC's prima facie case is that Mr. Linton did not explicitly identify any UCC product as a source of his exposure (Deposition pp. 63-66, 67-68, objections omitted):

Q. Do you recall any of the insulation contractors?

A. Well, I know that.... Treadwell was wrapping pipe, wrapping the machines, all those machines that they had, insulating them.

Q. Was this in both Units 4 and 5?

A. Yes.

Q. Do you ever recall a company by the name of Robert A. Keasbey?

A. Yes.

Q. What do you recall them doing?

A. They were also handling pipe.

Q. Do you recall them doing insulation work?

A. Yes, yes....

Q. You used the word, gaskets?

A. Um-hum.

Q. What did you mean by that?

A. Gaskets. When they were joining the pipes together, they were trimming these pads, these gaskets that go between the two joints.

Q. Were those workers doing that in your vicinity?

A. Yes....

Q. You indicated that these pipes also had to be — I believe your phrase was wrapped?

A. Yes.

Q. Could you describe for me what you mean by wrapping?

A. Like wrapped the fabric around the asbestos fabric, around the pipes and banded it to hold it.

* * * *

Q. Did you ever see any of these contractors using any cement or bagged products for insulation?

A. There was a .... kind of a cement insulator. I just saw them doing that, but I guess it was an asbestos, but I'm not sure.

Q. Do you know who manufactured that product?

A. No, I don't.

Q. Did you ever have to clean up any debris from that product?

A. Whatever was on the ground or whatever was around that was left, that was my job....

Q. What other equipment do you recall being in the Astoria Powerhouse at the time that you were there? A. Oh, there was these stacks, precipitators.

Q. Can you describe for me what a precipitator is? ....

A. Precipitators, stacks, and they were cleaning the air, that's all I understood.

Plaintiffs oppose in light of UCC's admission[3] that it supplied ash conveying equipment to Astoria Unit 5 and UCC product schematics[4] which show that it shipped such equipment to the Astoria powerhouse during the exact time period in question which contained asbestos cement and asbestos gaskets. Taking this into account, it is of no moment that Mr. Linton's testimony was generalized or that there was no specific identification of ash conveying equipment. What is important for summary judgment purposes is that Mr. Linton cleaned up debris from all of the work being performed at Astoria Unit 5 and testified that such debris included dust from asbestos gasket material and asbestos cement. The weight to be given to such testimony must now be decided by a jury at trial. See Anderson v Liberty Lobby, Inc., 477 US 242, 255 (1986); Asabor v Archdiocese of N.Y., 102 AD3d 524, 527 (1st Dept 2013); Alvarez v NY City Hous. Auth., 295 AD2d 225, 226 (1st Dept 2002); Dollas v W.R. Grace & Co., 225 AD2d 319, 321 (1st Dept 1996).

The defendant misplaces its reliance on this court's prior decisions in Wubbe[5] and Fischer.[6] Mr. Wubbe worked as an electrician aboard several destroyers at the Brooklyn Navy Yard but spent only three days on average aboard each ship. The defendant supplied valves to some of those ships, but plaintiffs were unable to show that they were installed or maintained in Mr. Wubbe's presence. Mr. Fischer, a civilian draftsman who designed radar systems, also worked aboard various ships at the Brooklyn Navy Yard. The defendant pump manufacturer sought dismissal on the ground that Mr. Fischer did not identify it as a source of his exposure even though he explicitly identified eleven other pump manufacturers as such. While plaintiffs' opposition papers revealed that one of the ships upon which Mr. Fischer worked contained eight of the defendant's pumps, the mere presence of such pumps somewhere aboard the ship in question was not sufficient to create a reasonable inference of exposure.

Here, to the contrary, the plaintiff testified that he worked exclusively on the construction of Astoria's 4th and 5th boiler units for over eight months and that he was exposed to asbestos on a daily basis from debris left over by the various trades. The documentary evidence plainly shows that the defendant's asbestos-containing equipment was installed at this exact location during this exact time period. Given these facts and circumstances a jury could reasonably infer that Mr. Linton was exposed to asbestos from the defendant's products. See Reid, supra; Cawein, supra.

Accordingly, it is hereby

ORDERED that United Conveyor Corporation's motion for summary judgment is denied.

This constitutes the decision and order of the court.

[1] Mr. Linton was diagnosed with mesothelioma in May of 2013. He succumbed to his illness on May 16, 2014. [2] Copies of Mr. Linton's deposition transcripts are submitted as defendant's exhibits B-D ("Deposition"). [3] Plaintiffs' exhibit 5, p. 2

[4] Plaintiffs' exhibit 4, passim.

[5] Wubbe v A.W. Chesterton Co., Inc., Index No. 116162/05 (Sup.Ct.NY Co. June 27, 2013, Heitler, J. [6] Fischer v Aerco International, Inc., Index No. 190462/12 (Sup. Ct. NY Co. Sept. 19, 2013, Heitler, J.)

Sources

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