Koulermos v. Treadwell Corp. (In re New York City Asbestos Litig., 2015)

Our plain-English summary of In re New York City Asbestos Litig. (New York Supreme Court, August 13, 2015).

Michael Koulermos and his wife sued A.O. Smith Water Products and other defendants in New York County. He said he developed mesothelioma from working at the Northport Power Station on Long Island, where he was exposed to asbestos while working near steamfitters employed by Treadwell Corporation. Treadwell moved for summary judgment because the plaintiffs had no evidence tying his injury to Treadwell. The plaintiffs withdrew their opposition, so their claims against Treadwell were dismissed as moot. The remaining dispute was Treadwell's request to dismiss cross-claims by co-defendant National Grid, which succeeded the power station's owner, Long Island Lighting Company. The court denied that request. Treadwell had submitted no affidavit about when its employees worked at the station or whether they used asbestos products. The court also found factual disputes about when the plaintiff worked there, since his recollection of the 1950s conflicted with records showing construction in the 1960s, and about who employed him. It said those discrepancies were for the trier of fact to resolve.

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: August 13, 2015
• Citation: 2015 NY Slip Op 31523
• Docket: Docket No. 190406/2014, Seq. No. 004
• Stage: Summary judgment
• Unpublished opinion. Many courts limit citing unpublished opinions as precedent.
• State: New York

Outcome. 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of co-defendant National Grid's cross-claims, and held the motion moot as to the plaintiffs' own claims, which they had withdrawn opposition to.

What the court held. A defendant moving for summary judgment must first make a prima facie showing of no material issue of fact; failing that, and given factual disputes over when the plaintiff worked at the site and whether he worked alongside the defendant's employees, cross-claims cannot be dismissed.

Issues decided: Fault, Apportionment and Settlement Credits, Trial Procedure and Discovery, Product Identification.

The people and their exposure

• Michael Koulermos: mesothelioma

Who	Work	Where	When	Products
Michael Koulermos	painter for a paint contractor (power plants and utilities); worked near others using it	Northport Power Station, Northport, New York	1950s per plaintiff; 1960s per National Grid's evidence	gaskets and packing, welding rods, valve packing

The defendants

• Treadwell Corporation (contractor)
• National Grid USA (premises owner)
• National Grid USA Service Company (premises owner)
• A.O. Smith Water Products (manufacturer)

Other decisions in this case

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

• Koulermos v. O'Connor Constructors (Matter of New York City Asbestos Litig.) (May 5, 2016). The court denied O'Connor Constructors' motion for summary judgment dismissing plaintiff Koulermos's claims and all cross-claims, because O'Connor only pointed to gaps in plaintiff's proof and offered no affirmative evidence.

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Berensmann v. Georgia-Pacific (Matter of New York City Asbestos Litig.) (New York Supreme Court, Appellate Division, 1st Dept., 2014). The appellate court dismissed the claims about Georgia-Pacific's wallboards because it never made asbestos wallboard, but otherwise affirmed the denial of Georgia-Pacific's summary judgment motion, so plaintiffs' joint compound claims proceed.
• DiSalvo v. Neles-Jamesbury (Matter of New York City Asbestos Litigation) (New York Supreme Court, Appellate Division, 1st Dept., 2014). The Appellate Division affirmed the denial of summary judgment to Neles-Jamesbury, Inc., holding it had not met its initial burden, so plaintiff Carl DiSalvo prevailed on the appeal.
• 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.

2015 NY Slip Op 31523(U)

IN RE NEW YORK CITY ASBESTOS LITIGATION.

MICHAEL KOULERMOS and MARIAN KOULERMOS, Plaintiffs,

v.

A.O. SMITH WATER PRODUCTS, etal., Defendants.

Docket No. 190406/2014, Seq. No. 004.

August 13, 2015.

Supreme Court, New York County.

PETER H. MOULTON, Judge.

As is relevant to this motion, plaintiff Micheal Koulermos ("plaintiff") contends that he developed mesothelioma as a result of working at the Northport Power Station in Northport, Long Island (the "power station") after being exposed to asbestos while working near employees of the moving defendant Treadwell Corporation ("Treadwell"). Although plaintiffs originally opposed the motion, by letter dated July 16, 2015 they withdrew their opposition and filed what is often referred to in the NYCAL Case Management Order as a "No Opposition" summary judgment motion, which would effect dismissal of plaintiffs' claims. However, Treadwell's motion, which was based on plaintiff's failure to produce evidence that he was injured as a result of exposure to products manufactured, distributed, sold or installed by Treadwell, also included a request for dismissal of any cross-claims. That request is opposed by co-defendants National Grid USA and National Grid USA Service Company (the successor to Long Island Lighting Company) (collectively "National Grid" or "co-defendant").

In its opposition, co-defendant asserts that plaintiff's claim that he was exposed to asbestos while working on the initial construction Units 1 and 2 at the power station, near other trades including steamfitters, is sufficient to create an issue of fact concerning co-defendant's cross-claims.[1] It is undisputed that Treadwell employed steamfitters who worked on the construction of Unit 1. Plaintiff testified that the steamfitters used welding rods, installed packing in valves and erected the boiler in his presence (TR 207-09, 343-44, 359-60, video TR 42-46)[2] and that plaintiff believed that he was exposed as a result (TR 209, 344, 360, video TR 42-46). National Grid (inexplicably through an attorney's affirmation), refers to copies of four agreements between Long Island Lighting Company ("LILCO") and Treadwell concerning the erection of the boiler and associated equipment for Unit 1, a contract summary for Unit 1 (that indicates Treadwell erected the boiler and associated equipment) and a daily construction report that indicates that 70 Treadwell steamfitters were working at the power station. In reply, Treadwell correctly points out that the evidence submitted by National Grid relates to the years 1965, 1967 and 1970 which Treadwell asserts postdates plaintiff's work at the power station by 5 to 15 years.[3] Treadwell points to plaintiff's testimony that he approximated that he worked at the power station in the early 1950s (Tr 171) and specifically from 1952-54 (Tr 296) for the paint contractor George Campbell & Company (Tr 298-99).[4] His social security records, Treadwell further points out, indicate that he worked for George Campbell & Company (bearing an address of 40-11, 149th St. Flushing New York 11354) from 1955 to 1961. Moreover, Treadwell argues that the facts of this case are similar to the facts in Matter of New York County Asbestos Litig., 52 AD3d 300 [1st Dept 2008]) but liability is even further attenuated. In that case, the First Department dismissed a plaintiff's claim against Treadwell because the plaintiff failed to establish that he was working at various Con Edison powerhouses "at the same time Treadwell workers or its subcontractors were installing alleged asbestos-based insulation on new equipment" (id. at 301).

In a sur-reply permitted by the court, National Grid asserts that plaintiff was wrong about the dates that he worked at the power station. National Grid notes that plaintiff testified that he was not sure about the exact years (Tr 339). Also, under questioning, plaintiff agreed that he worked on the "initial" construction of Units 1 and 2 at the power station (Tr 339). National Grid's counsel attaches proof that the initial construction did not occur until the 1960s. Counsel attaches a document entitled "Units #1 and #2 CONSTRUCTION MEETING 23 November 1966" reflecting the presence of Treadwell Corporation and Courter & Co., Inc. among others. That document reports on the progress of certain subcontractors including "George Campbell Painting Co." who arrived on the job November 21, 1966 and "started sand-blasting interior of condensate storage tank 22 November and will continue to completion, including painting" at Unit 1. Counsel also attaches

letters dated February 26, 1960, July 7, 1961 and January 8, 1964 discussing proposed preliminary construction schedules. A letter dated February 24, 1964 discusses the erection of the boiler and the "importance of maintaining the scheduled date of November 1, 1964 for start of subconstruction of the boiler area." That letter discusses the targeted "May 1967 operating date" and the need of the construction department to "insist that the currently scheduled starting date of November 1, 1964 be held, and that drawing, specification and bidding schedules be established accordingly." A document entitled "Boiler-Northport Power Station-Unit #1" lists dates in 1964 and 1965 for "Start Boiler Substructures" "Start Boiler Steel" and "Start Boiler." Counsel also attaches progress photos in 1965 for Unit 1 and in 1966 for Unit 2 depicting only some construction in progress. Thus, National Grid argues plaintiff could not have been working at the power station in the 1950s as construction did not even start until the 1960s.

Furthermore, although the social security records reflect that plaintiff worked for George Campbell & Company from 1955 to 1961, National Grid points out that plaintiff worked for Gombert-Campbell Corp.[5] in 1969 and 1970 which "might have been a joint venture between Campbell and another one of Plaintiff's earlier employers, Gombert Industries, Inc. and Plaintiff could have been working for Campbell, as part of the joint venture, at Northport." Alternatively, National Grid asserts that plaintiff could have been wrong about the identity of this employer when he worked on the initial construction of Unit 1 and 2. [6] At oral argument, the court offered Treadwell the opportunity to submit a response to the sur-reply, in light of National Grid's belated submission of yet more evidence. Treadwell declined.

Discussion

CPLR 3212 (b) provides, in relevant part:

A motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other

available proof, such as depositions and written admissions. The affidavit shall be by a person having

knowledge of the facts; it shall recite all the material facts; and it shall show that there is no defense to the cause of action or that the cause of action or defense has no merit. The motion shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party. Except as provided in subdivision (c) of this rule the motion shall be denied if any party shall show facts sufficient to require a trial of any issue of fact.

Thus, a defendant moving for summary judgment must first establish its prima facie entitlement to judgment as a matter of law by demonstrating the absence of material issues of fact (see Vega v Restani Constr. Corp., 18 NY3d 499 [2012]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). An affidavit from a corporate representative which is "conclusory and without specific factual basis" does not meet the burden (Matter of New York City Asbestos Litig. (DiSalvo), 123 AD3d 498 [1st Dept 2014]). Here, no affidavit was submitted.

Treadwell has failed to establish a prima facie case that National Grid's cross-claims have no merit. Treadwell makes no specific argument as to why the cross-claims should be dismissed other than because plaintiff has not produced any evidence that he was injured as a result of exposure to products manufactured, distributed, sold or installed by Treadwell. No affidavit was proffered regarding the dates that Treadwell employees worked at the power station. No affidavit was submitted demonstrating that Treadwell employees did not use asbestos products when they worked at the power station. Moreover, even assuming that Treadwell had made a prima facie case, issues of fact exist as to when plaintiff worked at the power station, and whether he worked contemporaneously with Treadwell employees.[7]

Matter of New York County Asbestos Litig., 52 AD3d 300, supra does not dictate a different result.[8] There the court found that plaintiff failed to establish a temporal connection with Treadwell and plaintiff lacked training in insulation which rendered untrustworthy his identification of asbestos-based insulation. Here, plaintiff had a license for asbestos removal, having taken courses at Northport high school (Tr 46, 48). Further, the court cannot reconcile plaintiff's testimony that he worked at the power station in the 1950s with the evidence that construction did not start until the 1960s. The court cannot reconcile plaintiff's testimony that he painted the "fully erected" smoke stacks at the power station for approximately three months (Tr 307, 320) when daily construction reports from May 1967 indicate that work was still ongoing, including on the boiler, and progress photos in 1965 reflect that only some construction was in progress, leading to the possibility that plaintiff worked at

the power station much later than he believed. Nor can the court resolve the issue of plaintiff's employer during the period of time that he worked at the power station or the unexplained connection between the Gombert and Campbell companies. The assessment of the value of a witnesses' testimony constitutes an issue for resolution by the trier 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" (Dallas v. Grace & Co., 225 AD2d 319, 321 [1st Dept. 1996] [internal citations omitted]).

It is hereby

ORDERED that Defendant's motion is denied to the extent that it seeks dismissal of any cross-claims against it, and is moot as to dismissal of plaintiffs' claims against it.

This constitutes the Decision and Order of the Court.

[1] Paragraph 43 of National Grid's Verified Answer asserts cross-claims against all defendants for contribution and contractual indemnification ("the several and joint carelessness. . . contractual indemnification, or breach of the requirements of the Labor Law or other wrongful conduct on the part of some or all of the co-defendants in this action").

[2] All transcripts references are references to plaintiff's deposition transcript.

[3] Treadwell raised no objection to National Grid's introduction of documents through an attorney's affirmation. Even absent consideration of such documents, the court would reach the same result in light of Treadwell's failure to submit any supporting evidence and plaintiff's conflicting deposition testimony.

[4] Plaintiff later stated that his estimate of 1952-54 was incorrect as it had to be sometime after his 1956 purchase of a home in Northport (Tr 338).

[5] While the Secretary of State website reflects the existence of plaintiff's former employers George Campbell Contracting Corporation with an address of 40-11, 149th St. Flushing New York 11354 and George Campbell Painting Corp. (listing the same address), and Gombert Industries with an address of 117 Brook Ave Deer Park NY 11729-7204, there is no company listed with the name Gombert-Campbell Corp. [6] Although not noted by National Grid, plaintiff testified that he worked at the power station for George Campbell & Company, whose sons "more or less ran it." (Tr 299). One son passed away and one son named "Leonard" lived in St. James (Tr 300). Plaintiff's social security records indicate employment at Gombert Industries Inc. with the address of 117 Brook Ave Deer Park NY [XXXX-XXXX from 1961 to 1978. The website for "The Gombert Organization" lists that same address, describes a "Leonard" Gombert who is a member of the "St. James" fire department) and describes the company's work to include sandblasting, among other things.

[7] The court is troubled by the fact that National Grid submitted new evidence in its sur-reply, as opposed to in its opposition to the motion, and is especially troubled by National Grid's admission at oral argument that this evidence was not turned over in discovery. [8] In light of more recent cases such as Matter of New York City Asbestos Litig (123 AD3d 498 [1st Dept 2014]) and Matter of New York City Asbestos Litig., 122 AD3d 520 [1st Dept 2014]), it is not clear that the cited case would come out the same way today.

Sources

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