Katechis v. Allied Bldg. Prods. Corp. (N.Y. Sup. Ct., June 15, 2022)

Our plain-English summary of Katechis v. Allied Bldg. Prods. Corp. (New York Supreme Court, June 15, 2022).

Agathi Katechis sued Allied Building Products Corp. and other companies, individually and as executrix of the estate of her husband, Anastasios Katechis. He was diagnosed with malignant mesothelioma in December 2019 and died in May 2021. The claim was that he was exposed to asbestos in joint compound while working as a painter for Mamais Construction from 1967 to 1971. He testified that the work produced a lot of dust and that Allied was one of four suppliers of joint compound at his worksites. He said he saw the Allied name on delivery trucks. Allied moved for summary judgment. It relied on a deposition by its vice president, George Jones, given in an unrelated New Jersey case, saying Allied never sold joint compound. The court denied the motion. It found that the Jones deposition could not be used against the plaintiff because she was not given notice of it and was not present. It also found that the decedent's testimony raised a factual question for a jury about whether Allied supplied the joint compound.

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: June 15, 2022
• Citation: 2022 NY Slip Op 31926(U)
• Stage: Summary judgment
• Unpublished opinion. Many courts limit citing unpublished opinions as precedent.
• State: New York

Outcome. The court denied Allied Building Products Corp.'s motion for summary judgment, so plaintiff Agathi Katechis's claims against Allied go forward.

What the court held. A defendant's summary judgment motion fails where it rests on a deposition from an unrelated case that is inadmissible against the plaintiff under CPLR 3117, and the plaintiff's own testimony identifying the defendant as a supplier raises a factual question for the jury.

Issues decided: Trial Procedure and Discovery, Product Identification.

The people and their exposure

• Anastasios E. Katechis: mesothelioma; died

Who	Work	Where	When	Products
Anastasios E. Katechis	painter (construction)		1967-1971	joint compound, joint compound (USG, Kaiser, Georgia Pacific, Gold Bond; allegedly supplied by Allied)

The defendants

• Allied Building Products Corp. (supplier)

Other decisions in this case

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

• Katechis v. Allied Bldg. Prods. Corp. (June 10, 2022). The court denied defendant Dykes Lumber Company's motion for summary judgment in its entirety, so plaintiff Agathi Katechis's claim against Dykes proceeds.

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.

2022 NY Slip Op 31926(U)

AGATHI KATECHIS, Plaintiff,

v.

ALLIED BUILDING PRODUCTS CORP., AMERICAN BILTRITE, INC., BIRD INCORPORATED,

BURNHAM CORPORATION, CERTAIN-TEED CORPORATION, CRANE CO., DAP, INC., DOMCO

PRODUCTS TEXAS, INC., KAISER GYPSUM COMPANY, INC., KAMCO SUPPLY CORP., KOHLER

CO., METROPOLITAN LIFE INSURANCE CO., SHERWIN-WILLIAMS COMPANY (THE), UNION

CARBIDE CORPORATION, WEIL MCLAIN, BUILDERS FIRSTSOURCE, INC., INDIVIDUALLY AND AS

SUCCESSOR IN INTEREST TO, AND/OR PARENT COMPANY AND ALTER-EGO OF, THE STROBER

ORGANIZATION, INC., STROBER BUILDING SUPPLY, THE CONTRACTOR YARD, AND U.S.

COMPONENTS, CONTRACTOR YARD (THE), INDIVIDUALLY AND AS SUCCESSOR IN INTEREST

TO THE STROBER ORGANIZATION, INC., DYKES LUMBER COMPANY, INC., PROBUILD

HOLDINGS, INC., INDIVIDUALLY AND AS SUCCESSOR IN INTEREST TO AND/OR PARENT

COMPANY AND ALTER-EGO OF, THE STROBER ORGANIZATION, INC., STROBER BUILDING

SUPPLY, THE CONTRACTOR YARD, AND U.S. COMPONENTS, PROBUILD HOLDINGS LLC,

INDIVIDUALLY AND AS SUCCESSOR IN INTEREST TO AND/OR PARENT COMPANY AND ALTER-

EGO OF, THE STROBER ORGANIZATION, INC., STROBER BUILDING SUPPLY, THE CONTRACTOR

YARD, AND U.S. COMPONENTS, STROBER BUILDING SUPPLY, INDIVIDUALLY AND AS

SUCCESSOR IN INTEREST TO THE STROBER ORGANIZATION, INC., STROBER ORGANIZATION,

INC. (THE), U.S. COMPONENTS, INC., INDIVIDUALLY AND AS SUCCESSOR IN INTEREST TO THE

STROBER ORGANIZATION, INC., Defendant.

DYKES LUMBER COMPANY, INC. Plaintiff,

v.

MANVILLE PERSONAL INJURY SETTLEMENT TRUST Defendant.

Index No. 190330/2019, Motion Seq. No. 002.

Motion March 18, 2022.

June 15, 2022.

Supreme Court, New York County.

DECISION + ORDER ON MOTION

ADAM SILVERA, J.S.C.

The following e-filed documents, listed by NYSCEF document number (Motion 002) 119, 120, 121, 122, 123, 124, 125, 126, 127, 128, 129, 130, 131, 139 were read on this motion to/for JUDGMENT — SUMMARY.

Upon the foregoing documents, it is hereby ordered that Defendant Allied Building Products Corp.'s (hereinafter referred to as Allied) motion for summary judgment is denied for the reasons set forth below.

Plaintiff Agathi Katechis individually and as executrix of the estate of Anastasios E. Katechis (decedent) commenced this action claiming personal injuries against Allied due to alleged exposure to asbestos. After a left pleural biopsy, decedent was diagnosed with malignant mesothelioma on December 16, 2019. See Notice of Motion, Exh. C. Decedent subsequently died on May 14, 2021. Plaintiff claims decedent was exposed to asbestos through joint compound while working for Mamais Construction (hereinafter referred to as Mamais), between 1967 and 1971, as a painter. Decedent testified that the joint compound was manufactured by USG, Kaiser, Georgia Pacific, and Gold Bond. Decedent's duties would include scraping old walls and then using scrapers to apply multiple coats of joint compound, with sanding in between each coat. Decedent further testified that when he worked with the joint compound, there was a lot of dust. Vice President/Corporate Vice

President of Allied Building George Jones testified at the time he was working at Allied, the company never used joint compound. Allied contends that they never sold, distributed, manufactured, or otherwise offered any joint compound at the time Decedent was working at Mamais. Conversely, Plaintiff contends that not only did decedent identify Allied as a supplier of the joint compound in which he used to paint, but defendants concede that they did not exclusively supply roofing materials. Allied moves for summary judgment and Plaintiff opposes. No reply papers were filed.

Pursuant to CPLR 3212(b), a motion for summary judgment, "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." "[T]he 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 demonstrate the absence of any material issues of fact". This burden is a heavy one and on a motion for summary judgment, facts must be viewed in the light most favorable to the non-moving party. If the moving party meets this burden, the burden then shifts to the non-moving party to `establish the existence of material issues of fact which require a trial of the action'". Jacobsen v New York City Health and Hosps. Corp., 22 NY3d 824, 833 (2014) (internal citations omitted). "The moving party's `[f]ailure to make [a] prima facie showing [of entitlement to summary judgment] requires a denial of the motion, regardless of the sufficiency of the opposing papers'". Vega v Restani Constr. Corp., 18 NY3d 499, 503 (2012) (internal emphasis omitted).

In the instant matter, Allied relies upon the deposition testimony of Mr. Jones regarding the impossibility of Allied delivering joint compound to decedent's worksite. Mr. Jones also testifies that during his employment as vice president and corporate vice president between 1969 to the early 1970's, the main nature of Allied's business was roofing. Plaintiff argues that " [a]gainst the cogent testimony of Mr. Katechis that Allied supplied asbestos-containing joint compound to his worksites between 1967 and 1972, Defendant's assertion that it did not sell joint compound during Mr. Katechis's period of exposure is based exclusively on the 21-year-old deposition, testimony of its corporate representative, George W. Jones, given in an unrelated case venued in New Jersey. But under New York law, this deposition is not competent evidence, admissible-in-form, and thus cannot be used against Plaintiffs herein." Affirmation In Opposition To Defendant Allied Building Products Corp.'s Motion For Summary Judgment, p. 5-6, ¶ 14 (internal citations and emphasis omitted). Pursuant to CPLR § 3117(a) (2), "[a]t the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the rules of evidence, may be used in accordance with ... the deposition testimony of a party or of any person who was a party when the testimony was given or of any person who at the time the testimony was given was an officer, director, member, employee or managing or authorized agent of a party, may be used for any purpose by any party who was adversely interested when the deposition testimony was given or who is adversely interested when the deposition testimony is offered in evidence". Here, Plaintiff raises the issue that Mr. Jones' deposition testimony is not admissible for Allied since they are not an adversely interested party at the time the deposition testimony was taken. Furthermore, the use of Mr. Jones' deposition testimony is clearly inadmissible herein as plaintiffs were neither noticed for such deposition nor present during it. See CPLR § 3117(a)(3). Allied proffers no evidence to the contrary. Thus, Mr. Jones' deposition cannot be relied upon to meet the heavy burden Allied bears to establish its prima facie case.

Moreover, assuming arguendo Allied met its burden, Plaintiff provides sufficient evidence to raise a genuine issue of material fact. "The 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". Dallas v W.R. Grace and Co., 225 AD2d 319, 321 (1st Dept 1996). In the instant matter, "Mr. Katechis testified that Allied supplied asbestos-containing joint compound to his worksites to which he was exposed between 1967 and 1972". Affirmation In Opposition, supra, at p.8, ¶ 20. Furthermore, it is undisputed that "Mr. Katechis identified Allied as one of just four suppliers of all of the joint compound that was used at his many worksites. He observed the Allied name on the trucks as they delivered the joint compound to his worksites". Id. at p.4, ¶ 10 (internal citations omitted). Conversely, Allied argues that "Mr. Katechis was not able to recall any detail about the supply companies' trucks, including as to what they looked like, the size, color —only that one of the trucks said Allied on it." Memorandum Of Law In Support Of Defendant Allied Building Products Corp.'s Motion For Summary Judgment, p. 4. "The assessment of the value of a witnesses' testimony constitutes an issue for resolution by the trier of fact". Dollas v W.R. Grace and Co., supra, at 321. Here, Allied's contentions do not refute the sufficiency of decedent's testimony, since the adequacy of testimony are a genuine issue of fact that must be resolved by a jury. As genuine issues of material facts exist, Allied's motion for summary judgment is denied.

Accordingly, it is

ORDERED that the defendant's motion for summary judgment is denied in its entirety; and it is further

ORDERED that within 30 days of entry, plaintiff shall serve a copy of this decision/order upon all parties with notice of entry.

Sources

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