Horvath v. AW Chesterton Co. (2023)

Our plain-English summary of Horvath v. AW Chesterton Co. (New York Supreme Court, October 23, 2023).

Susan Horvath sued a large group of companies over the mesothelioma of her late husband, Rudolf Horvath, who worked as a plumber in New York City from the 1960s to the 1990s. This decision addressed only one defendant, Ameron International Corporation, which made Bondstrand pipes. Ameron asked for summary judgment, arguing he was not exposed to asbestos from its pipes. It relied on his deposition remark about a West Side sewage plant, which it said was built in 1985, after asbestos was removed from Bondstrand pipe. The plaintiff answered that he testified clearly to exposure before 1978, when Ameron still made asbestos-containing Bondstrand, and identified the pipes in specific detail. The court denied the motion. It said that one vague statement did not cancel his other clear testimony, that the jury should decide what he meant and how much weight to give it, and that Ameron had not eliminated the factual questions.

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, 2023
• Citation: 2023 NY Slip Op 33729(U)
• Stage: Summary judgment
• State: New York

Outcome. 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.

What the court held. A defendant seeking summary judgment must unequivocally show its product could not have contributed to the injury. A plaintiff's deposition testimony identifying the product and the years of exposure raises a fact question for the jury, even if one statement is unclear.

Issues decided: Product Identification.

The people and their exposure

• Rudolf Horvath: mesothelioma; died

Who	Work	Where	When	Products
Rudolf Horvath	plumber (construction)	New York, New York	1960s to 1990s	Bondstrand (Ameron International Corporation)

The defendants

• Ameron International Corporation (manufacturer)

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.
• 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.

2023 NY Slip Op 33729(U)

SUSAN HORVATH, Plaintiff,

v.

A.W. CHESTERTON COMPANY, AERCO INTERNATIONAL, INC.,AIR & LIQUID SYSTEMS

CORPORATION, BUFFALO PUMPS DIVISION, AMERON INTERNATIONAL CORPORATION,

ARMSTRONG INTERNATIONAL, INC.,AURORA PUMP COMPANY, BLACKMER PUMP COMPANY,

BMCE INC., IN ITSELF AND AS SUCCESSOR TO UNITED CENTRIFUGAL PUMP CO., BRYAN

STEAM LLC, BURNHAM LLC, BW/IP, INC., CARRIER CORPORATION INDIVIDUALLY AND AS

SUCCESSOR-IN-INTEREST TO BRYANT HEATING & COOLING SYSTEMS, CBS CORPORATION, A

DELAWARE CORPORATION F/K/A VIACOM INC., SUCCESSOR-BY-MERGER TO CBS

CORPORATION, A PENNSYLVANIA CORPORATION F/K/A WESTINGHOUSE ELECTRIC

CORPORATION, CRANE CO., CROWN CORK & SEAL COMPANY, INC., DEZURIK, INC., ECR

INTERNATIONAL, INC., FLOWSERVE US INC., SOLELY AS SUCCESSOR TO EDWARD VALVES

INC., ROCKWELL MANUFACTURING COMPANY, NORDSTROM VALVES INC. AND McANNA

CORPORATION, FMC CORPORATION, FOSTER WHEELER ENERGY CORPORATION, GARDNER

DENVER, INC., GENERAL ELECTRIC COMPANY, GOULDS PUMPS, INCORPORATED, GREENE

TWEED & CO. INC., GRINNELL LLC, HERCULES, LLC, IMO INDUSTRIES, INC., INDUSTRIAL

HOLDINGS CORPORATION F/K/A THE CARBORUNDUM COMPANY, ITT LLC, JOHN CRANE, INC.,

JOHN E. POTENTE & SONS, INC., KOHLER COMPANY, MARIO & DIBONO FIREPROOFING CORP.,

MARIO & DIBONO PLASTERING CO. INC., MILWAUKEE VALVE COMPANY INC., MORSE TEC LLC,

F/K/A BORGWARNER MORSE TEC LLC, AND SUCCESSOR-BY-MERGER TO BORG-WARNER

CORPORATION, MORSE-DIESEL CONSTRUCTION CO., INC., NASH ENGINEERING COMPANY,

PECORA CORPORATION, RHEEM MANUFACTURING COMPANY, SPIRAX SARCO, INC., SPX

COOLING TECHNOLOGIES, INC., STERLING FLUID SYSTEMS (USA) LLC, TISHMAN

CONSTRUCTION CORPORATION, TISHMAN LIQUIDATING CORPORATION, TISHMAN REALTY &

CONSTRUCTION CO., INC., TURNER CONSTRUCTION COMPANY, UNION CARBIDE

CORPORATION, VELAN VALVE CORPORATION, WARREN PUMPS, LLC, WEIL-McLAIN INC., A

DIVISION OF THE MARLEY-WYLAIN COMPANY, WEIR VALVES & CONTROLS USA, INC. D/B/A

ATWOOD & MORRILL CO., INC., WILLIAM POWELL COMPANY, YORK INTERNATIONAL

CORPORATION, JOHN DOE 1 THROUGH JOHN DOE 75 (FICTITIOUS), NEW YORK PLUMBING

SUPPLY LLC, RUBEN MANAGEMENT SERVICES, LLC, WEBSTER PLUMBING SUPPLY INC.,

LARAMELS REALTY, INC., LAWRENCE RUBEN COMPANY, INC., D/B/A RUBEN COMPANIES,

RUBEN CAPITAL MANAGEMENT L.L.C., Defendant.

Index No. 190002/2021, Motion Seq. No. 005.

Motion August 1, 2023.

October 23, 2023.

Supreme Court, New York County.

DECISION + ORDER ON MOTION

ADAM SILVERA, J.S.C.

It is ordered that the instant motion for summary judgment seeking dismissal of this action, pursuant to CPLR § 3212, is denied for the reasons set forth below.

Defendant Ameron International Corporation ("Ameron") moves to dismiss this asbestos action on the grounds that plaintiff-decedent, Rudolf Horvath ("Mr. Horvath"), was not exposed to asbestos from "Bondstrand" pipes manufactured by defendant during plaintiff's work as a plumber in New York City from the 1960s to 1990s. Defendant Ameron's motion is based primarily on the fact that Mr. Horvath mentioned exposure to Bondstrand pipes in the West Side area and that the sole sewage treatment plant on the West side of Manhattan was built in 1985, a time period after asbestos was removed from Bondstrand pipes. See Memorandum of Law in Support of Ameron International Corporation's Summary Judgment Motion, p. 2-4. In opposition, plaintiff highlights Mr. Horvath's declining condition due to mesothelioma at the time of his deposition, and his lack of commitment to a single, specific location or worksite of exposure. See Plaintiff's Memorandum of Law in Opposition to Defendant Ameron International Corporation's Motion for Summary Judgment, p. 3-4; 7-8. Additionally, plaintiff notes that Mr. Horvath testified unequivocally as to his exposure occurring prior to 1978 (a time in which defendant Ameron was still manufacturing asbestos-containing Bondstrand pipes) and identified Bondstrand pipes with clear, specific details. See id., p. 3-4.

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).

Here, defendant Ameron's motion rests heavily on the deceased plaintiff's deposition testimony. With respect to plaintiff's deposition testimony, the Appellate Division, First Department, has held that "[t]he 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. 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." Dollas v W.R. Grace and Co., 225 AD2d 319, 321 (1st Dep't 1996) (internal citations omitted). The statement at issue herein from Mr. Horvath's deposition (in response to where he recalled exposure from chemical pipes, including Bondstrand) was: "I think I did once for the City, contracted from the City, in, I think, the West Side area, a chemical plant where they took raw sewage and created — you know, make that drinkable and stuff like that." Affirmation of John B. Wetmore in Support of Plaintiff's Opposition to Defendant Ameron International Corporation's Motion for Summary Judgment, dated July 21, 2023, Exh. 1, Volume 2 Virtual Deposition of Rudolf Horvath, dated June 29, 2021, p. 147, In. 22-25.

This sole statement, in which Mr. Horvath did not identify specific worksite exposure locations, does not cancel out the rest of his unequivocal testimony clearly identifying the years of his exposure and Bondstrand pipes as a source of exposure as a matter of law. See Plaintiff's Memorandum of Law in Opposition, supra, p. 4. It is for the jury to determine what Mr. Horvath meant by this statement, and whether it carries any weight against his other testimony. Moreover, Mr. Horvath's specific identification of Bondstrand pipes, their relevant details, and his years of exposure is sufficient to raise questions of fact so as to preclude summary judgment.

Accordingly, it is

ORDERED that defendant Ameron'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