Friedman v. AI Friedman, LP (2010)

Our plain-English summary of Friedman v. AI Friedman, LP (New York Supreme Court, July 7, 2010).

Roberta Friedman sued A.I. Friedman, L.P. and other defendants in New York County. She has been diagnosed with mesothelioma. She and her mother testified that her father and uncle used a United Gilsonite Laboratories (UGL) joint compound for renovations at the family home in Bayside, New York, between about 1956 and 1970, when she was a child. She said mixing, sanding and cleanup created a lot of dust, and she helped clean up. UGL's own records indicated it did not stop using asbestos until 1975. UGL moved for summary judgment, arguing she had no evidence of exposure to its product. It supported the motion with an affidavit from its president saying UGL never sold to Sears, where she believed her father bought the product. The court denied the motion. Her uncertainty about where the product was bought was a matter of credibility for the trier of fact. Her and her mother's testimony was enough to raise a factual question about exposure to UGL's product.

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 7, 2010
• Citation: 2010 NY Slip Op 31890(U)
• Docket: No. 190263/09
• Stage: Summary judgment
• Unpublished opinion. Many courts limit citing unpublished opinions as precedent.
• State: New York

Outcome. The trial court denied defendant United Gilsonite Laboratories' motion for summary judgment, so plaintiff Roberta Friedman's claims against it proceed.

What the court held. Plaintiffs need not show a precise cause of injury, only facts from which liability may reasonably be inferred, such as being near where the defendant's product was used and being exposed to it. Testimony that conflicts with other evidence on where a product was bought goes to credibility, a question for the trier of fact.

Issues decided: Trial Procedure and Discovery, Product Identification.

The people and their exposure

• Roberta Friedman (family member): mesothelioma

Who	Work	Where	When	Products
Roberta Friedman	child at family residence during renovations; dust brought home	56-33 Cloverdale Boulevard family residence, Bayside, New York	1956-1970	joint compound, UGL joint compound (United Gilsonite Laboratories)

The defendants

• United Gilsonite Laboratories (manufacturer)
• A.I. Friedman, L.P.

Other decisions in this case

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

• Friedman v. AI Friedman, LP (June 29, 2011). The trial court denied defendant DAP Inc.'s motion for summary judgment in its entirety, so plaintiff Roberta Friedman's claims against DAP go forward.

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.

2010 NY Slip Op 31890(U)

ROBERTA FRIEDMAN, Plaintiff,

v.

A.I. FRIEDMAN, L.P., etal., Defendants.

No. 190263/09.

July 7, 2010.

Supreme Court, New York County.

DECISION & ORDER

SHERRY KLEIN HEITLER, Judge.

In this asbestos-related personal injury action, defendant, United Gilsonite Laboratories ("UGL") moves to dismiss the complaint and all cross claims asserted against it in this action pursuant to CPLR 3212, on the ground that plaintiff, Roberta Friedman ("Plaintiff), has not demonstrated sufficient evidence that she was exposed to asbestos from an asbestos-containing product manufactured or distributed by UGL.

Plaintiff has been diagnosed with mesothelioma. Plaintiff and her mother, Renee Beer, testified that a UGL compound was used by plaintiffs father and uncle for renovations done at the family's residence when plaintiff was a child. The family residence was located at 56-33 Cloverdale Boulevard in Bayside, New York. These renovations were made from approximately 1956 to 1970. The UGL formula card for its joint compound product and Defendant's Answers to Interrogatories state that it did not eliminate the use of asbestos until 1975. (Plaintiff's Exhibit F, Exhibit G at 10, 67). Plaintiff and her mother testified that plaintiff was present when a UGL compound was used in her home. Plaintiff helped her father clean up the product after he used it. The description of the packaging and product itself is similar to a description in a UGL brochure which was issued during the time plaintiff alleges exposure. Plaintiff testified that the UGL product was purchased between 1956 and 1970 by her lather from the Sears in Great Neck, Long Island.

Defendant argues that summary judgment should be granted based on the failure of plaintiff to produce any evidence that she was exposed to any asbestos-containing products or material manufactured by UGL during her lifetime. Defendant supports this motion with the Affidavit of Thomas White, President of UGL, which states that UGL never sold any products to Sears during or before the relevant time period (1956-1970). Defendant argues that White's affidavit demonstrates that plaintiffs testimony can be discredited since it is impossible that her father purchased UGL at Sears. In response, plaintiff contends that she could have been mistaken as to where the UGL product was purchased. Plaintiff states she never saw her father actually purchase it from Sears but rather that is simply where she assumed it was purchased from. Plaintiffs mother testified that the joint compound products plaintiffs uncle purchased were from a paint store on Bell Boulevard off of Northern Boulevard.

Summary judgment is a drastic remedy, which must not be granted if there is "any doubt as to the existence of a triable issue." Henderson v. City of New York, 178 A.D.2d 129 (1st Dept., 1991). Here, plaintiff has presented sufficient evidence to raise a triable issue of fact concerning plaintiffs alleged asbestos exposure from a UGL product. Plaintiff testified that a UGL product was used in her home by "her uncle and his crew". (Plaintiffs Exhibit B, p. 45.) Plaintiff was able to identity the type of packaging and form the UGL product came in:

Q. What type of packaging did the UGL come in?

A. It came in a box.

Q. Do you recall how large of a box?

A. I would say probably four or five pounds.

(Plaintiff's Exhibit A, p. 55.)

Plaintiff testified that she saw UGL products all the time. (Plaintiffs Exhibit A, p. 220.)

Plaintiff described the UGL product as follows:

Q And do you know the consistency of the UGL product?

A Yeah, it was powder.

Q Okay. And do you believe you were exposed to asbestos from the UGL compound?

MS. DARGER: Objection.

A Yes.

Q Can you describe how?

A From the dust that it created. There was dust all over the product.

Q Can you describe how it was applied that created the dust?

A It had to be mixed with water, and that would create a lot of dust. And then when it was sanded, it would create a lot of dust. And then when it was cleaned up, it would create a lot, a lot of dust, as well, (Defendant's Exhibit B, p.45-46, 1.24-26, 1-16.)

Plaintiffs mother testified that plaintiff helped her uncle whenever he was around, "because she was always curious to see what was going on." (Plaintiffs Exhibit C, p. 21.)

While plaintiff did testify that the products were purchased at Sears, she also testified that she did not personally see her father purchase the product at Sears. (Plaintiffs Exhibit B, p. 45.) Plaintiff also testified:

Q Did your father purchase all of his products at Scars?

A I would say he purchased a lot of products from Sears. Me may have purchased things, some things, from other places that I don't know. But, from what I saw, he purchased a lot of stuff from Sears.

(Plaintiff's Exhibit B, p. 71.).

Plaintiffs mother testified that her brother-in-law purchased the compounds that he used at "a paint store on Bell Boulevard, and he most — he picked up a lot of things there..." Plaintiffs mother also testified that the father purchased most of his products from Sears.

Q Do you know where the compounds that were used in the construction of the basement were purchased?

A Most likely at Sears.

Q Why do you say that?

A Because that's where my husband used to go to purchase most of his products.

(Plaintiff's Exhibit C, p. 18-19.)

Whether the plaintiff was correct or incorrect as to where the UGL compound was purchased is an issue of credibility. "The assessment of the value of a witness' testimony constitutes an issue for resolution by the trier of fact and any apparent discrepancy between the testimony and the evidence of the record goes only to the weight and not the admissibility of the testimony." (Sec, Dollas v. W. R. Grace & Company, 225 A.D.2d 319, 321 [1996].)

Under the facts in this case, summary judgment must be denied. Plaintiffs are not required to show a precise cause of their damages, but only to show facts and conditions from which defendant's liability may be reasonably inferred. "[T]hat is, that

plaintiff worked in the vicinity where defendant's products were used, and that plaintiff was exposed to defendant's product." Comeau v. W.R. Grace & Co. Conn., 216 A.D.2d 79, 80 (1st Dept., 1995).

In this case, the deposition testimony of plaintiff and plaintiffs mother, in which they specifically recall plaintiff being exposed to UGL products are sufficient to raise issues of fact relative to the origin of plaintiffs exposure to asbestos. Accordingly, defendant's motion for summary judgment is denied.

Therefore, it is hereby

ORDERED that UGL's motion for summary judgment is denied.

This constitutes the decision and order of the court.

Sources

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