Hildebrand v. Port Authority of New York and New Jersey (Matter of New York City Asbestos Litig., 2021)

Our plain-English summary of Matter of New York City Asbestos Litig. (New York Supreme Court, Appellate Division, January 21, 2021).

Seval Morgan sued individually and as proposed executrix for Bernd Hildebrand, who died in 2015. He allegedly contracted malignant pleural sarcomatoid mesothelioma from asbestos-containing products while working for Pan American World Airways at John F. Kennedy International Airport in the 1970s. Among the defendants was the Port Authority of New York and New Jersey, which leased the terminal to Pan Am. The Port Authority moved for summary judgment to dismiss the Labor Law § 200 and common-law negligence claims, and the trial court denied the motion. The First Department affirmed. It found issues of fact on whether the Port Authority had authority to control the application of asbestos-containing materials. Under the lease, Pan Am needed the Port Authority's approval of construction specifications, including materials. A Pan Am project manager testified that the Port Authority dictated what had to be done. A coworker's testimony raised fact issues on exposure. The court rejected the hearsay objection because the decedent died without being deposed and the events dated to the 1970s.

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, Appellate Division, 1st Dept.
• Decided: January 21, 2021
• Citation: 2021 NY Slip Op 372
• Stage: Appeal from summary judgment
• State: New York

Outcome. The First Department affirmed the denial of the Port Authority's summary judgment motion on the Labor Law § 200 and common-law negligence claims, so plaintiff Seval Morgan's claims against the Port Authority continued.

What the court held. Issues of fact on whether the Port Authority had authority to control the activity that caused the injury, here the application of asbestos-containing materials, precluded summary judgment. A plaintiff opposing summary judgment may show an acceptable excuse for not tendering evidence in admissible form, and inadmissible evidence need not be the sole basis for finding fact issues.

Issues decided: Premises Owner Liability, Trial Procedure and Discovery.

The people and their exposure

• Bernd Hildebrand: pleural mesothelioma; died

The defendants

• Port Authority of New York and New Jersey (premises owner)

Other decisions in this case

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

• Matter of New York City Asbestos Litig. (March 23, 1993). The Appellate Division affirmed the trial court's rulings: it upheld the preclusion of the defendant's relitigation of a point decided in prior litigation, the five additurs, and the exclusion of evidence about the cause of Sutton's death, so the defendant lost.
• Matter of New York City Asbestos Litig. (October 2, 2012). The First Department affirmed the trial court's order consolidating the three plaintiffs' actions against Colgate-Palmolive for a joint trial, rejecting Colgate-Palmolive's appeal.
• Matter of New York City Asbestos Litig. (May 28, 2013). The First Department reversed the judgment awarding plaintiffs damages against the Port Authority, vacated it, denied plaintiffs' default judgment motion, and granted the Port Authority's motion to dismiss for lack of subject matter jurisdiction.
• Fersch v. Volkswagen Group of America (Matter of New York City Asbestos Litig.) (November 26, 2013). The First Department affirmed the trial court's order consolidating the Juni, Fersch and Middleton cases for trial, ruling against Volkswagen Group of America, Inc., which had appealed.
• Konstantin v. Tishman Liquidating Corp. (Matter of New York City Asbestos Litig.) (July 3, 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.
• Berensmann v. Georgia-Pacific (Matter of New York City Asbestos Litig.) (November 20, 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.
• Andrucki v. Port Authority of New York and New Jersey (Matter of New York City Asbestos Litig.) (January 15, 2015). On remittitur from the Court of Appeals, the First Department affirmed the $2,500,000 judgment for plaintiffs against the Port Authority, which had defaulted by not appearing at trial, without an inquest on damages.
• South v. Chevron Corp. (Matter of New York City Asbestos Litig.) (August 29, 2017). The Appellate Division affirmed the denial of Texaco's summary judgment motion, so the widow's Jones Act mesothelioma claims against Texaco (sued as Chevron's alleged predecessor) continued; Texaco lost, with one justice dissenting.
• Miller v. Hennessy Indus. (Matter of New York City Asbestos Litig.) (October 5, 2017). The First Department affirmed the judgment entered after a jury trial awarding plaintiff Walter Miller $5 million for past and $4 million for future pain and suffering against Hennessy Industries, which lost its appeal.
• Matter of New York City Asbestos Litig. (June 20, 2019). The Appellate Division reversed the judgment entered on a jury verdict for plaintiff, granted Whittaker Clark & Daniels' motion for judgment notwithstanding the verdict, and dismissed the complaint against it.
• Olson v. Johnson & Johnson (Matter of New York City Asbestos Litig.) (July 19, 2022). The First Department reversed the judgment for plaintiffs against Johnson & Johnson and directed entry of judgment for J&J, because plaintiffs' expert proof of causation was legally insufficient; the appeal from the damages-reduction order was dismissed as subsumed.
• McWilliams v. Jenkins Bros. (Matter of New York City Asbestos Litig.) (February 27, 2024). The First Department affirmed the denial of Jenkins Bros.' motion for JNOV, a new trial, or remittitur, leaving plaintiff McWilliams' $13,000,000 past and $10,000,000 future pain and suffering verdict intact.
• Maffei v. Burnham (Matter of New York City Asbestos Litig.) (March 13, 2025). The First Department affirmed the jury-verdict judgment for plaintiffs Romeo and Rosa Maffei against Burnham LLC, including compensatory, consortium and punitive awards, and dismissed the appeal from the post-trial order as subsumed in the judgment.

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.

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.

2021 NY Slip Op 00372

IN THE MATTER OF NEW YORK CITY ASBESTOS LITIG.

SEVAL MORGAN, INDIVIDUALLY, AND AS PROPOSED EXECUTRIX FOR BERND HILDEBRAND,

Plaintiff-Respondent,

AMERICAN HOME ASSURANCE COMPANY, INC., ET AL., Defendants,

PORT AUTHORITY OF NEW YORK AND NEW JERSEY, Defendant-Appellant.

Index No. 190063/16, Appeal No. 12925, Case No. 2020-02378.

Decided January 21, 2021.

Appellate Division of the Supreme Court of New York, First Department.

Order, Supreme Court, New York County (Manuel J. Mendez, J.), entered October 21, 2019, which denied the motion of defendant Port Authority of New York and New Jersey (Port Authority) for summary judgment insofar as it sought dismissal of the Labor Law § 200 and common-law negligence claims, unanimously affirmed, without costs.

Segal McCambridge Singer & Mahoney, Ltd., New York (Michael J. McKeown of counsel), for appellant.

Meirowitz & Wasserberg, LLP, New York (Kush Shukla of counsel), and Shrader & Associates, Houston TX (Bradley Peek, of the bar of the State of Texas, admitted pro hac vice, of counsel), for respondent.

Before: Renwick, J.P., Manzanet-Daniels, Kapnick, Kern, Kennedy, JJ.

Plaintiff's decedent, who died in 2015, allegedly contracted malignant pleural sarcomatoid mesothelioma as a result of exposure to asbestos-containing products in the course of his employment with Pan American World Airways, Inc. (Pan Am) at John F. Kennedy International Airport in the 1970s. There are at least issues of fact as to whether defendant "had the authority to control the activity bringing about the injury," "namely, the application of asbestos-containing materials" in the airport terminal where decedent worked (Matter of New York Asbestos Litig., 146 AD3d 461, 461, 462 [1st Dept 2017], appeal dismissed 29 NY3d 1141 [2017]). Under a lease agreement between Port Authority and Pan Am, before Pan Am commenced any construction work at the airport as required under the agreement, Pan Am needed to obtain Port Authority's advance approval to Pan Am's specifications, including as to "materials." The lease also gave Port Authority the right to conduct testing on samples of the materials. A witness who was Pan Am's project manager at times relevant to this action testified that Port Authority "dictated what had to be done," and "would make a determination" as to which "material" needed to be "remove[d] or not remove[d]." The project manager also testified that Port Authority's resident engineers inspected the site to ensure compliance with Port Authority's specifications (see id. at 462). In addition, testimony by decedent's Pan Am coworker, who remembered her "constant interaction" with decedent in the terminal, raised issues of fact as to whether the regular application of asbestos-containing products in the terminal caused decedent to be exposed to asbestos fibers in the air.

It does not avail Port Authority to argue that some of the coworker's testimony was inadmissible hearsay. Plaintiff, as the party opposing summary judgment, "may be permitted to demonstrate acceptable excuse for [a] failure to meet the strict requirement of tender in admissible form" (Zuckerman v New York, 49 NY2d 557, 562 [1980]). In this case, decedent died without being deposed, and the allegations center on occurrences in the 1970s. Moreover, any evidence that would be inadmissible at trial is not the sole basis for the finding that there are issues of fact (see Matter of New York City Asbestos Litig., 7 AD3d 285, 285 [1st Dept 2004]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST

DEPARTMENT.

Sources

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