Eckrich v. ECR Int'l (In re New York City Asbestos Litigation, 2020)

Our plain-English summary of In re New York City Asbestos Litigation (New York Supreme Court, May 6, 2020).

Thomas Eckrich and his wife sued several companies after he was diagnosed with mesothelioma in August 2017; he died in February 2019. He worked as a pollution control engineer for the New York City Department of Air Resource from about 1970 to 1995. He inspected boilers while other workers maintained and repaired asbestos-containing boilers nearby, which he said created dust he inhaled. ECR International, maker of Utica boilers, moved for summary judgment, arguing there was no proof he was exposed to asbestos from its products and that his testimony was speculative. The court denied the motion. It held that the attorney's affirmation was acceptable as a way to submit admissible evidence. It found that Mr. Eckrich's testimony identified Utica boilers, and that a Utica corporate representative testified that Utica boilers used asbestos thermal insulation and components and could have stayed in use until the mid-1990s. ECR's interrogatory answers conflicted with that testimony. The court concluded ECR had not made a prima facie showing and that fact issues remained for 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
• Decided: May 6, 2020
• Citation: 2020 NY Slip Op 31255
• Docket: Docket No. 190250/2017, Motion Seq. No. 003
• Stage: Summary judgment
• Unpublished opinion. Many courts limit citing unpublished opinions as precedent.
• State: New York

Outcome. The court denied ECR International's motion for summary judgment, so the Eckrich plaintiffs' claims against ECR go forward.

What the court held. In New York City asbestos litigation, a plaintiff need only show facts and conditions from which the defendant's liability may be reasonably inferred, and summary judgment is denied where plaintiff has presented sufficient evidence, not all of it hearsay, to warrant a trial.

Issues decided: Trial Procedure and Discovery, Product Identification.

The people and their exposure

• Thomas L. Eckrich: mesothelioma; died

Who	Work	Where	When	Products
Thomas L. Eckrich	pollution control engineer; worked near others using it	New York City Department of Air Resource inspection sites, New York, New York	1970-1995	Utica boilers (ECR International)

The defendants

• ECR International, Inc. (manufacturer)

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Diedrich v. Robert A. Keasbey Co. (IN the Matter of New York City Asbestos Litigation) (New York Supreme Court, Appellate Division, 1st Dept., 2004). The Appellate Division affirmed the denial of summary judgment to Robert A. Keasbey Company, so the executrix's claims go to trial.
• 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.

2020 NY Slip Op 31255(U)

IN RE: NEW YORK CITY ASBESTOS LITIGATION.

THOMAS L. ECKRICH and ROSE B. ECKRICH, Plaintiffs,

v.

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

Docket No. 190250/2017, Motion Seq. No. 003.

Motion May 4, 2020.

May 6, 2020.

Supreme Court, New York County.

MANUEL J. MENDEZ, J.S.C.

It is ordered that defendant ECR International, Inc.'s (hereinafter "ECR") motion for summary judgment pursuant to CPLR § 3212 to dismiss plaintiffs' complaint, is denied.

Plaintiff, Thomas L. Eckrich, was diagnosed with mesothelioma on August 8, 2017 and died on February 2, 2019 as a result of his alleged exposure to asbestos. He worked as a pollution control engineer for the New York City Department of Air Resource from approximately 1970 to 1995. While employed as pollution control engineer, he worked in the same vicinity as other workers who maintained and repaired asbestos-containing boilers. It is alleged that he was exposed to asbestos when other workers maintained and replaced asbestos-containing boilers before or during Mr. Eckrich's inspection. The maintenance and repair caused asbestos dust that he inhaled.

Plaintiffs commenced this action on August 25, 2017 to recover for the injuries Mr. Eckrich sustained. (Moving papers, Exh. A).

ECR now makes this motion for summary judgment pursuant to CPLR § 3212 to dismiss plaintiffs' complaint against it. ECR alleges that plaintiffs have failed to provide evidence that Mr. Eckrich was exposed to asbestos from any asbestos-containing product manufactured, sold, or distributed by ECR.

To prevail on a motion for summary judgment, the proponent must make a prima facie showing of entitlement to judgment as a matter of law, through admissible evidence, eliminating all material issues of fact. (Klein v. City of New York, 81 N.Y.2d 833, 652 N.Y.S.2d 723 [1996]). It is only after the burden of proof is met that the burden switches to the non-moving party to rebut the prima facie showing, by producing contrary evidence in admissible form, sufficient to require a trial of material factual issues. (Amatulli v. Delhi Constr. Corp., 77 N.Y.2d 525, 569 N.Y.S.2d 337 [1999]). Thus, a party opposing a summary judgment motion must assemble and lay bare its affirmative proof to demonstrate that genuine triable issues of fact exist. (Kornfeld v. NRX Tech., Inc., 93 A.D.2d 772, 461 N.Y.S.2d 342 [1983], aff'd 62 N.Y.2d 686, 465 N.E.2d 30, 476 N.Y.S.2d 523 [1984]).

Summary judgment is a drastic remedy that should only be granted if there are no triable issues of fact. (Vega v. Restani Constr. Corp., 18 N.Y.3d 499, 942 N.Y.S.2d 13, 965, N.E.2d 240 [2012]). In determining the motion, the court must construe the evidence in the light most favorable to the non-moving party by giving the non-moving party the benefit of all reasonable inferences that can be drawn from the evidence. (SSBS Realty Corp. v. Public Service Mut. Ins. Co., 253 A.D.2d 583, 677 N.Y.S.2d 136 [1st Dept. 1998]).

In support of its motion, ECR argues that Mr. Eckrich's deposition testimony fails to adequately and properly identify the existence of any ECR product, specifically, Utica brand boilers, over the course of his career. ECR further argues that Mr. Eckrich did not identify any bystander exposure to asbestos-containing boilers and that his deposition testimony was based on speculation.

In opposition to the motion for summary judgment, plaintiffs argue that Mr. Eckrich sufficiently described what he believed to be asbestos-containing Utica boilers. Plaintiffs state that Utica boilers' corporate representative's testimony contradicts ECR's answers to interrogatories that stated their jacketed boilers did not contain asbestos and they never sold unjacketed

boilers. Plaintiffs claim that Mr. Eckrich's product identification establishes he worked with and near asbestos-containing Utica boilers, and in any event, contend issues of fact remain as to his exposure. (Opp., Exh. A at 232, 479, and 699). Plaintiffs allege that ECR does not provide testimony by someone with knowledge of the facts in support of its motion, and thus ECR's motion should be denied.

An attorney's affirmation alone is hearsay that may not be considered, and does not support, prima facie entitlement to summary judgment. (Kase v. H.E.E. Co., 95 A.D.3d 568, 944 N.Y.S.2d 95 [1st Dept, 2012] citing Zuckerman v. City of New York, 49 N.Y.2d 557, 404 N.E.2d 718, 427 N.Y.S.2d 595 [1980]). A motion for summary judgment can be decided on the merits when an attorney's affirmation is used for the submission of documentary evidence in admissible form and annexes proof from an individual with personal knowledge, such as plaintiff's deposition testimony, (see Aur v. Manhattan Greenpoint Ltd., 132 A.D.3d 595, 20 N.Y.S.3d 6 [1st dept. 2015]; Hoeffner v. Orrick, Herrington & Sutcliffe LLP, 61 A.D.3d 614, 878 N.Y.S.2d 717 [1st Dept. 2009]).

Plaintiffs argument that ECR's motion should be denied because it relies on the attorney's affirmation alone, is unavailing. The attorney's affirmation in support of ECR's motion is being used as a vehicle to submit documentary evidence in admissible form and is sufficient to sustain this motion.

Mr. Eckrich's deposition testimony provides product identifications of asbestos-containing Utica boilers. Mr. Eckrich can specifically recall that he worked at locations that had asbestos-containing Utica boilers during his time working for the New York City Department of Air Resource. (Opp., Exh. A, 699-700). As an air pollution control engineer, Mr. Eckrich states that he was responsible for inspecting asbestos-containing boilers, and before or during the inspection, other workers would maintain and repair the asbestos-containing boilers in his presence, which created asbestos dust that he inhaled. (Opp., Exh. A). Mr. Eckrich specifically identified Utica boilers from 1970 through approximately 1995 during his time working for the City of New York.

ECR provided plaintiffs' request for production of documents and their answers to interrogatories that referenced the sale of asbestos-containing jacketed boilers and other asbestos-containing boiler equipment. (Moving papers, Exh D). The request for production of documents and answers to interrogatories state that ECR did not manufacture or produce asbestos-containing products. (Moving papers, Exh. D). ECR's answers to interrogatories contradict the testimony offered by Utica's corporate representative, Peter Desen. The answers to interrogatories also state that ECR may have used asbestos-containing components in their boilers that were manufactured and produced by other companies. The interrogatories state that suppliers began making asbestos-free components available sometime between the mid to late 1970's into the 1980's. (Moving papers, Exh. D).

Plaintiffs further provide the trial testimony of Utica corporate representative, Peter Desen, dated November 22, 2019. Mr. Desen testified that Utica boilers did use asbestos-containing components and that Utica boilers used asbestos thermal insulation. Mr. Desen also testified that the asbestos-containing thermal insulation was used in Utica boilers from at least its founding in 1928 until approximately the 1950s. He further stated that jacketed boilers could have a working shelf-life of approximately 50 years, concluding that asbestos-containing Utica boilers could have been in use until the mid 1990's. (Opp., Exh. B at 538-539, 543-545, and 581).

ECR argues that plaintiffs failed to identify Utica as a manufacturer, seller, or distributor of any asbestos products from which Mr. Eckrich was allegedly exposed to asbestos because ECR did not manufacture, sell, or distribute asbestos-containing jacketed boilers. ECR further argues that Mr. Eckrich never removed or performed service work on any Utica boiler and that he did not have any bystander exposure to asbestos. (Moving papers, Exh. C).

In New York City Asbestos Litigation, the "plaintiff is not required to show the precise causes of his damages, but only show facts and conditions from which defendant's liability may be reasonably inferred." (Reid v. Ga. Pacific Corp., 212 A.D.2d 462, 622 N.Y.S.2d 946 [1st Dept. 1995]). Summary judgment must be denied when the plaintiff has "presented sufficient evidence, not all of which is hearsay, to warrant a trial." (Oken v. A.C.&S. (In re N.Y.C. Asbestos Litig.), 7 A.D.3d 285, 776 N.Y.S.2d 253 [1st Dept. 2004]).

Mr. Eckrich's deposition testimony, ECR interrogatories and requests for product identifications, and the trial testimony of Utica's corporate representative, Peter Desen, provide sufficient evidence to meet the Reid standard mentioned above. Plaintiffs have shown facts and conditions from which the defendant's liability may be reasonably inferred. (Reid, supra). Plaintiffs have demonstrated through ECR interrogatories and requests for product identifications, Mr. Eckrich's deposition

testimony, and the trial testimony of Utica's corporate representative Peter Desen, that ECR manufactured, sold, and distributed asbestos-containing boilers during the time of Mr. Eckrich's alleged exposure. Summary judgment must be denied when the plaintiff has "presented sufficient evidence, not all of which is hearsay, to warrant a trial." (Oken v. A.C. & S. (In re N.Y.C. Asbestos Litig., supra).

Furthermore, it is not the function of the Court deciding a summary judgment motion to make credibility determinations or findings of fact, but rather to identify material issues of fact (or point to the lack thereof). (Vega v. Restani Const. Corp., 18 N.Y.3d 499, 965 N.E.2d 240, 942 N.Y.S.2d 13 [2012]).

ECR fails to make a prima facie showing of entitlement to judgment as a matter of law. ECR's contention that Mr. Eckrich was never exposed to asbestos-containing boilers and insulation manufactured, sold, or distributed by ECR is unpersuasive. Alternatively, plaintiffs have raised issues of fact to be resolved at trial. Mr. Eckrich has specifically identified Utica boilers manufactured by ECR that he saw during the time of his alleged exposure. Plaintiffs have demonstrated "facts and conditions from which [ECR's] liability may be reasonably inferred" to warrant the denial of ECR's motion for summary judgment. (Reid v. Ga. Pacific Corp., 212 A.D.2d 462, 622 N.Y.S.2d 946 [1st Dept. 1995]).

Accordingly, it is ORDERED that defendant ECR International, Inc.'s motion for summary judgment pursuant to CPLR 3212, dismissing plaintiffs' complaint, is denied.

Sources

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