Konstantin v. Tishman Liquidating Corp. (Matter of New York City Asbestos Litig., 2016)

Our plain-English summary of Matter of New York City Asbestos Litig. (New York Court of Appeals, June 28, 2016).

Dave John Konstantin worked as a carpenter in the 1970s at two Manhattan construction sites where Tishman Liquidating Corporation (TLC) was the general contractor. He worked near other workers who sanded and swept asbestos-containing joint compound. He was diagnosed with mesothelioma in 2010 and died in 2012. He and his wife sued TLC and others. His case was tried jointly with another plaintiff's case after five other joined cases settled. The jury found TLC 76% liable and awarded damages, which the trial court reduced. TLC appealed, arguing the joint trial was improper and the damages standard was misapplied. The New York Court of Appeals affirmed. It held TLC failed to assemble a record allowing review of the pretrial joint-trial order. It also held TLC did not preserve its objection to the two-case joint trial, since it first raised it after trial. The Appellate Division applied no wrong standard in upholding the reduced award, and the Court of Appeals could not review a claim that damages were excessive.

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 Court of Appeals
• Decided: June 28, 2016
• Citation: 27 N.Y.3d 1172
• Docket: No. 85
• Stage: Appeal from post-trial motions
• State: New York

Outcome. The Court of Appeals affirmed the Appellate Division's order, which upheld the judgment for plaintiff Konstantin against Tishman Liquidating Corporation, and held TLC had not preserved or recorded its joint-trial challenge and could not challenge the damages as excessive.

What the court held. A party challenging a joint-trial order must assemble an adequate appellate record and must specifically object when circumstances change, such as after some cases settle, to preserve the challenge. The Court of Appeals has no power to review a claim that damages are excessive.

Issues decided: Fault, Apportionment and Settlement Credits, Compensatory Damages, Trial Procedure and Discovery.

Why this case is relevant

New York's highest court affirmed a judgment for a carpenter's family in a mesothelioma case without deciding whether the joint trial was proper. It held the general contractor had not assembled an appellate record allowing review of the pretrial joint-trial order, and had not preserved its objection to trying the two remaining cases together because it first raised it after trial. Once five cases settled, the defendant had to object anew and ask for a fresh analysis. The court also held the Appellate Division need not expressly compare an award with awards in other cases, and that it could not review a claim that damages were excessive.

Most later citing decisions in our library cite the Appellate Division's ruling in this case, noting that this decision affirmed it. New York trial courts deciding joint-trial motions cited it for the routine rule that a motion for a joint trial rests in the trial court's discretion, noting the affirmance was "on other grounds". One cited it for applying joint-trial factors flexibly. The Appellate Division cited it when reviewing pain and suffering awards and a recklessness finding. Two decisions mentioned it only in recounting procedural history.

This section was drafted with the assistance of WARD, our Worldwide Asbestos Reference Desk, from the opinion and the later decisions in our library that cite it. It is not legal advice.

The people and their exposure

• Dave John Konstantin: mesothelioma; died

Who	Work	Where	When	Products
Dave John Konstantin	carpenter (construction); worked near others using it	two Manhattan construction sites, New York, New York	1970s	joint compound, joint compound

The defendants

• Tishman Liquidating Corporation (contractor)
• 630 Third Avenue Associates

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Konstantin v. Tishman Liquidating Corp. (Matter of New York City Asbestos Litig.) (New York Supreme Court, Appellate Division, 1st Dept., 2014). The Appellate Division affirmed both jury-verdict judgments for the plaintiffs (Konstantin against Tishman Liquidating Corporation, Dummitt against Crane Co.) and dismissed the appeal from the order denying Crane's post-trial motion as subsumed in the judgment appeal; one justice, joined by another, dissented in part as to Dummitt.

Later decisions citing this one

10 later decisions in our library cite this one:

• Mtr OF Nyc Asbestos Litig. (New York Court of Appeals, 2016). The Court of Appeals affirmed both Appellate Division orders, leaving in place the plaintiffs' jury verdicts against Crane Co. in the Dummitt and Suttner mesothelioma cases.
• Seen v. Kaiser Gypsum Co. (Matter of New York City Asbestos Litigation) (New York Supreme Court, Appellate Division, 1st Dept., 2024). The First Department modified the judgment against Kaiser Gypsum, ordering a new trial on pain and suffering damages unless plaintiff stipulated to reduce the $15 million award to $10 million, remanded to recalculate the judgment for settlement offsets, and otherwise affirmed the verdict for plaintiff.
• Ford v. AO Smith Water Products (New York Supreme Court, Appellate Division, 1st Dept., 2019). The First Department modified the judgment against Burnham LLC, vacating the $2 million future pain and suffering award and ordering a new trial on those damages unless plaintiff stipulated to reduce it to $500,000, and otherwise affirmed the verdict for plaintiff.
• Macaluso v. A.O. Smith Corp. (Matter of New York City Asbestos Litigation) (New York Supreme Court, Appellate Division, 1st Dept., 2019). The First Department affirmed the jury verdict for plaintiff on liability but ordered a new trial on damages unless plaintiff stipulated to further reduce the awards to $4 million for pain and suffering and $1 million for each child's loss of parental guidance.
• Bucci v. Air & Liquid Sys. Corp. (New York Supreme Court, 2018). The trial court denied the plaintiffs' motion to consolidate the Bucci, Johnsen and Palmeri asbestos cases for a joint trial, ruling for the defendants who opposed it.
• Konstantin v. Certain Underwriters AT Lloyd's London (New York Supreme Court, 2018). The court denied Resolute Management's pre-answer motion to dismiss the tortious-interference claim brought by the executor of the Konstantin estate, and ordered Resolute to answer within 20 days.
• Matter of Adesso v. AO Smith Water Prods. Co. (New York Supreme Court, 2018). The court granted plaintiffs' motion in part, ordering joint trials for Cerato/Lynch, McCormick/Munnelly, Kalachman/Rothman, Hickey/Litz, George/Toy, Hutnick/Soto and Hill/Lipari, and denied joinder for Swanson/Whitaker, Hiddie/Rose, Costa/Endelmann, Lehanka/Snider, Bascomb/Gallagher and for adding Scott to Hill and Lipari, over the defendants' opposition.
• Montebianco v. AO Smith Corp. (New York Supreme Court, 2018). The court denied the plaintiffs' motion to consolidate the Montebianco and Reilly asbestos cases for a joint trial, so the defendants prevailed on the motion.
• Altman v. Ford Motor Co. (In re New York City Asbetos Litigation) (New York Supreme Court, 2017). The court granted plaintiffs' motion to consolidate in part: Altman and Hofstetter were to be tried together, Barber, Egri and Moynihan were to be tried together, and DeStefano, Fox, Baginski and Evans were to be tried separately.
• Klock v. Albany Intl. Corp. (New York Supreme Court, Onondaga, 2017). The court denied the plaintiffs' joint motion to consolidate the McIntosh and Gaumes asbestos actions for a July 2017 trial, so the defendants, including Vanderbilt Minerals, prevailed on the motion.

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.

27 N.Y.3d 1172 (2016)

59 N.E.3d 1197

38 N.Y.S.3d 85

In the Matter of NEW YORK CITY ASBESTOS LITIGATION.

RUBY E. KONSTANTIN, Individually and as Executrix of DAVE JOHN KONSTANTIN, Deceased,

Respondent,

v.

630 THIRD AVENUE ASSOCIATES et al., Defendants, and

TISHMAN LIQUIDATING CORPORATION, Appellant.

No. 85.

Argued May 3, 2016.

Decided June 28, 2016.

Court of Appeals of New York.

[*1174] Quinn Emanuel Urquhart & Sullivan, LLP, New York City (Kathleen M. Sullivan, Sheila L. Birnbaum, Jane M. Byrne and William B. Adams of counsel), and Pillsbury Winthrop Shaw Pittman LLP, New York City (E. Leo Milonas, David G. Keyko and Eric Fishman of counsel), for appellant.

Belluck & Fox, LLP, New York City (Seth A. Dymond of counsel), for respondent.

Shook, Hardy & Bacon, LLP, Washington, D.C. (Victor E. Schwartz and Mark A. Behrens, of the District of Columbia bar, admitted pro hac vice, of counsel), for Business Council of New York State and others, amici curiae. Barry McTiernan & Moore LLC, New York City (Suzanne M. Halbardier of counsel), Baker & McKenzie LLP, Chicago, Illinois (Michael A. Pollard, of the Illinois bar, admitted pro hac vice, and Michael C. McCutcheon, of the Illinois bar, admitted pro hac vice, of counsel), and O'Connell, Tivin, Miller & Burns, LLC, Chicago, Illinois (Daniel J. O'Connell, of the Illinois bar, of counsel), for John Crane Inc., amicus curiae.

Judges PIGOTT, RIVERA, ABDUS-SALAAM, STEIN, FAHEY and GARCIA concur; Chief Judge DIFIORE taking no part. OPINION OF THE COURT

MEMORANDUM.

The order of the Appellate Division should be affirmed, with costs, and the certified question not answered as unnecessary. In the 1970s, plaintiff's decedent, Dave John Konstantin, worked as a carpenter at two Manhattan construction sites where defendant Tishman Liquidating Corporation (TLC) was the general contractor. Konstantin worked in close proximity to other workers who sanded and swept joint compound containing asbestos, and Konstantin was thereby exposed to asbestos dust. In 2010, Konstantin was diagnosed with mesothelioma, and he subsequently endured several surgeries, radiation, and chemotherapy until his death in 2012.

Before his death, Konstantin and plaintiff commenced the present action against TLC, among others. Konstantin's case was assigned along with nine other cases, including Matter of New York City Asbestos Litig. (Dummitt v A.W. Chesterton) (27 NY3d 765 [2016] [decided today]) to an in extremis trial calendar. The 10 plaintiffs, all of whom were represented by the same firm, subsequently requested a joint trial pursuant to CPLR 602 (a). All defendants jointly opposed that motion. Supreme Court ordered that 7 of the 10 cases, in which the plaintiffs had developed mesothelioma, would be tried together, [*1175] and the remaining three cases, in which the plaintiffs had developed lung cancer, would be tried together. Thus, the court's order required the cases of Konstantin and Dummitt, who had both developed mesothelioma, to be tried with five others.

Before trial, however, the other five cases settled, leaving only Konstantin and Dummitt to be tried together. The jury found TLC 76% liable for Konstantin's injuries and awarded damages. Supreme Court denied TLC's posttrial motion to set aside the verdict in relevant part, holding that the joint trial was not improper, but reduced the jury's damages award (see 37 Misc 3d 1206[A], 2012 NY Slip Op 51905[U], [*12], [*14]-16 [Sup Ct, NY County 2012]).

The Appellate Division considered the Dummitt and Konstantin appeals together (121 AD3d 230 [1st Dept 2014]). TLC contended, among other things, that Supreme Court abused its discretion in holding a joint trial. The Appellate Division determined that the issue was reviewable and concluded that Supreme Court did not err in holding a joint trial (see id. at 241-246). The Appellate Division rejected TLC's remaining contentions and affirmed the judgment (see id. at 246-248, 255). Two Justices dissented in Dummitt but concurred in the result in Konstantin. As relevant here, those Justices would have declined to address TLC's challenge to Supreme Court's pretrial order granting a joint trial on the ground that TLC failed to assemble a proper appellate record and therefore meaningful review of the court's order was impossible (see id. at 256-257 [Friedman, J., dissenting in part]). The First Department granted TLC's motion for leave to appeal to this Court, certifying the question whether its order was properly made (2014 NY Slip Op 92113[U] [1st Dept 2014]).

On appeal before this Court, TLC contends that the Dummitt and Konstantin actions were improperly tried together. To the extent that TLC challenges Supreme Court's pretrial order granting the motion for a joint trial with respect to the seven plaintiffs that had developed mesothelioma, TLC has not satisfied its obligation to assemble an appellate record that would permit meaningful review of that issue (see CPLR 5526). We agree with the Appellate Division Justices who dissented in part that TLC's failure to assemble a proper record prevents us from reviewing Supreme Court's pretrial order (see 121 AD3d at 256-257 [Friedman, J., dissenting in part]).

Insofar as TLC argues that Dummitt and Konstantin were improperly tried together, TLC has failed to preserve that challenge [*1176] for appellate review. TLC did not specifically challenge the joint trial of the Dummitt and Konstantin actions until its posttrial motion, which is insufficient to preserve its contention for appellate review (see generally Grzesiak v General Elec. Co., 68 NY2d 937, 939 [1986]).

1176

TLC contends that because it joined all defendants in opposing the plaintiffs' pretrial motion, it was unnecessary for TLC to renew its objection after the five other cases settled. We disagree. In its pretrial order, Supreme Court considered the plaintiffs' motion to try all 10 cases jointly and concluded that seven of those cases, in which the plaintiffs had developed mesothelioma, should be tried together. The court therefore considered whether seven of those cases shared common questions of law or fact (see CPLR 602 [a]), and whether the defendants would be prejudiced by a joint trial of all seven (see generally Matter of Vigo S. S. Corp. [Marship Corp. of Monrovia], 26 NY2d 157, 161-162 [1970], cert denied 400 US 819 [1970]). If, after five of those seven cases settled, TLC believed that Supreme Court should consider the propriety of a joint trial anew — by conducting a particularized assessment of whether Dummitt and Konstantin shared common issues of law or fact and of whether defendants would be prejudiced by the two-case joint trial — it was incumbent upon TLC to object, raise the specific arguments it now asserts with respect to these two cases, and ask the court to conduct that analysis in order to preserve its challenge for appellate review. TLC did not do so, and we therefore cannot consider whether Supreme Court abused its discretion as a matter of law in trying Dummitt and Konstantin together. Finally, we reject TLC's contention that the Appellate Division applied the wrong legal standard in assessing whether Supreme Court's reduced damages award deviated materially from reasonable compensation. Neither CPLR 5501 (c) nor 5522 requires the Appellate Division to expressly compare the damages award in the judgment appealed from with damages awards in other cases in its written decision. In any event, the Appellate Division thoroughly explained its decision to uphold Supreme Court's reduced damages award (see 121 AD3d at 255). To the extent TLC contends that the damages award is excessive, we have no power to review that contention (see Rios v Smith, 95 NY2d 647, 654 [2001]). [*1177] Order affirmed, with costs, and certified question not answered as unnecessary, in a memorandum. 1177

Sources

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