DiSalvo v. Neles-Jamesbury (Matter of New York City Asbestos Litigation, 2014)

Our plain-English summary of Matter of New York City Asbestos Litigation (New York Supreme Court, Appellate Division, December 11, 2014).

Carl A. DiSalvo sued a number of defendants, including Neles-Jamesbury, Inc., over an asbestos-related injury. The opinion does not name his disease or describe his work. Neles-Jamesbury, a valve company, asked for summary judgment, and the lower court denied the request. On appeal, the First Department affirmed. It held that the company had not met its initial burden of showing that its product could not have contributed to DiSalvo's injury. The company relied on an affidavit from its representative saying it was impossible for DiSalvo to have seen valves bearing the Neles-Jamesbury name. The court found that affidavit conclusory and lacking a specific factual basis. The company also argued that it had no duty to warn about asbestos in insulation used on its valves, which it did not make. The court declined to consider this because the company raised it for the first time on appeal.

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: December 11, 2014
• Citation: 123 A.D.3d 498
• Stage: Appeal from summary judgment
• State: New York

Outcome. 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.

What the court held. A defendant seeking summary judgment must first show prima facie that its product could not have contributed to the plaintiff's asbestos injury, and a conclusory affidavit without specific factual basis does not meet that burden. Arguments raised for the first time on appeal will not be considered.

Issues decided: Causation, Product Identification.

Why this case is relevant

In this short decision, the First Department affirmed the denial of summary judgment to a valve maker, Neles-Jamesbury. It applied an existing rule taken from earlier First Department cases: a defendant seeking summary judgment must first show prima facie that its product could not have contributed to the plaintiff's asbestos-related injury. It also held that a company representative's affidavit saying it was "impossible" for the plaintiff to have seen the company's valves was conclusory and without specific factual basis, so it did not meet that burden. The court also refused to consider a duty-to-warn argument raised for the first time on appeal.

Of the later decisions in our library whose citing passages we reviewed, most are New York Supreme Court rulings. They often list this case alongside other appellate decisions when stating a defendant's initial burden on summary judgment in asbestos cases. Some trial courts relied on it to reject defense affidavits that lacked a factual basis or supporting documents. In 2023 the Appellate Division cited it when finding that an engineer's affidavit did not rule out a fact question about whether the defendant's pumps were on certain vessels.

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

• Carl A. DiSalvo

The defendants

• Neles-Jamesbury, Inc. (manufacturer)
• A.O. Smith Water Products

Other decisions in this case

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

• Held v. Sequoia Ventures (Matter of New York City Asbestos Litigation) (June 12, 2007). The Appellate Division affirmed the ruling in favor of Sequoia Ventures (formerly Bechtel), rejecting the plaintiff executrix's claim that the engineer's insulation specifications caused her husband's mesothelioma.
• Croteau v. Treadwell Corp. (Matter of New York City Asbestos Litigation) (June 26, 2007). The Appellate Division affirmed the order granting Con Edison contractual indemnification against Treadwell for sums paid to Croteau, rejecting Treadwell's arguments.
• Sweberg v. Crane Co. (Matter of New York City Asbestos Litigation) (October 6, 2016). The First Department reversed the order on the Labor Law § 240(1) claim, granting the defendants' motion and dismissing the complaint on that claim. It also upheld the jury's verdict against Crane Co. on failure to warn and recklessness, but found the future pain and suffering award materially excessive to an extent the text does not state.
• Hackshaw v. Crane Co. (Matter of New York City Asbestos Litigation) (October 6, 2016). The First Department affirmed the jury verdict for plaintiff Dorcas Hackshaw (executrix of Selwyn Hackshaw) against Crane Co. on liability, but found the award for past pain and suffering excessive and reduced it to the extent indicated (the figure is not in the text).
• Krok v. The Nash Engineering Co. (Matter of New York City Asbestos Litigation) (January 26, 2017). The Appellate Division, First Department, unanimously affirmed the trial court's denial of Nash Engineering Company's motion for summary judgment, so the plaintiff estate's claim against Nash continued.
• Brown v. Consolidated Edison Co. of New York (Matter of New York City Asbestos Litigation) (March 28, 2019). The Appellate Division reversed the judgment that capped Con Ed's share at 30% and directed an amended judgment apportioning 65% of plaintiff's total recovery against Con Ed, so plaintiff won and Con Ed lost; Con Ed's cross appeal from the denial of summary judgment was dismissed.
• Macaluso v. A.O. Smith Corp. (Matter of New York City Asbestos Litigation) (June 18, 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.
• English v. Colgate-Palmolive Co. (Matter of New York City Asbestos Litigation) (May 21, 2024). The First Department reversed the trial court's denial of Colgate-Palmolive's summary judgment motion, granted the motion and dismissed the complaint against Colgate, ruling against the plaintiff executor.
• Seen v. Kaiser Gypsum Co. (Matter of New York City Asbestos Litigation) (May 21, 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.

Later decisions citing this one

67 later decisions in our library cite this one. The 30 from the highest courts, newest first:

• Howard v. AO Smith Water Prods. (New York Supreme Court, Appellate Division, 3rd Dept., 2023). The Appellate Division modified the order, granting Armstrong Pumps partial summary judgment for exposure before December 20, 1965 (which plaintiffs conceded), and otherwise affirmed the denial of summary judgment, so plaintiffs Howard and his spouse won on the remaining claims.
• Unger v. AW Chesterton Co. (New York Supreme Court, 2022). The court denied the Watts defendants' motion for summary judgment and partly granted plaintiff Edward Unger's cross-motion for sanctions, with conditional preclusion and $10,000 in costs and fees against each of Watts Water Technologies, Watts Regulator Co. and their law firm.
• Camiolo v. American Biltrite Inc. (New York Supreme Court, 2021). The trial court denied Goodyear Tire & Rubber Company's motion for summary judgment, finding plaintiffs raised fact issues on whether decedent was exposed to asbestos from Goodyear floor tiles.
• Esposito v. Abb, Inc. (New York Supreme Court, 2021). The trial court denied defendant William Powell Company's motion for summary judgment, so the plaintiff's complaint and all cross-claims against Powell remain.
• Love v. Aerco Intl., Inc. (New York Supreme Court, 2021). The court denied CSC Scientific's motion for summary judgment dismissing the complaints, but granted partial summary judgment dismissing claims for exposure to Cenco products before July 31, 1976 and after April 17, 1979.
• Milan-Leal v. Brenntag N. AM. (New York Supreme Court, 2021). The court denied retailer Lot Less's motion for summary judgment dismissing the plaintiff's claims and all cross-claims, and denied its indemnity cross-claims as premature; the plaintiff estate prevailed on the motion.
• Sprague v. Abb, Inc. (New York Supreme Court, 2021). The court denied the Federal-Mogul Asbestos Personal Injury Trust's (as successor to Fel-Pro) motion for summary judgment, so plaintiff Lorraine Sprague's complaint and the cross-claims against Fel-Pro remain.
• Germain v. Whittaker Clark & Daniels (In re New York City Asbestos Litigation) (New York Supreme Court, 2020). The trial court granted Whittaker Clark & Daniels summary judgment only on claims about talc sold to American International Industries, Johnson & Johnson and Colgate-Palmolive, and denied it on claims about talc sold to Neslemur for Clubman talcum powder, so the plaintiffs' claims on that talc continue.
• Luca v. American Int'l Indus. (In re New York City Asbestos Litigation) (New York Supreme Court, 2020). The court denied American International Industries' motion for summary judgment dismissing the complaint and cross-claims, and its alternative motion to dismiss the punitive damages claims, so the plaintiffs (the Luca estate and widow) won.
• Rivera v. Meriden Molded Plastic (In re New York City Asbestos Litigation) (New York Supreme Court, 2020). The trial court denied Meriden Molded Plastic Inc.'s motion for summary judgment, so the plaintiffs' claims and the cross-claims against it continue.
• Luca v. Whittaker, Clark and Daniels (In re New York City Asbestos Litigation) (New York Supreme Court, 2020). The court denied Whittaker, Clark and Daniels' motion for summary judgment dismissing the plaintiffs' complaint and cross-claims, and its alternative request to dismiss the punitive damages claim, so the plaintiffs' claims go forward.
• Lamenta v. American Biltrite (In re New York City Asbestos Litigation) (New York Supreme Court, 2020). The trial court granted American Biltrite's summary judgment motion and dismissed the plaintiffs' claims and all crossclaims against it, because the plaintiffs did not raise a fact issue on general or specific causation.
• Rothlein v. Whittaker Clark & Daniels (In re New York City Asbestos Litigation) (New York Supreme Court, 2020). The court granted Whittaker Clark & Daniels' summary judgment motion only as to talc supplied to Johnson & Johnson and Colgate-Palmolive (unopposed), and denied it as to talc supplied for Old Spice, Mennen and Clubman powders, so plaintiffs' claims on those products continue.
• Rivera v. Ericksson (In re New York City Asbestos Litigation) (New York Supreme Court, 2020). The trial court denied Ericksson, Inc.'s motion for summary judgment, which sought dismissal of the plaintiffs' complaint and all cross-claims, because it did not make a prima facie showing on causation.
• Mauro v. John E. Potente & Sons (In re New York City Asbestos Litigation) (New York Supreme Court, 2020). The trial court granted John E. Potente & Sons' motion for summary judgment only to the extent of dismissing the punitive damages claims (withdrawn by stipulation) and denied the rest, so plaintiffs' claims and the cross-claims against Potente remain.
• Vincent v. Baltimore Aircoil Co. (In re New York City Asbestos Litigation) (New York Supreme Court, 2020). The court denied Baltimore Aircoil Company's motion for summary judgment dismissing the Vincents' complaint and all cross-claims, finding fact issues on product identification.
• Stiglitz v. Homasote Co. (Matter of New York City Asbestos Litigation) (New York Supreme Court, 2020). The trial court denied Homasote Company's motion for summary judgment dismissing the plaintiffs' complaint and all cross-claims, so the plaintiffs (the estate and widow) prevailed on the motion.
• Leavitt v. Rogers Co. (In re New York City Asbestos Litigation) (New York Supreme Court, 2019). The court denied Rogers Company's motion for summary judgment and its motion to dismiss for lack of personal jurisdiction, so the Leavitts' claims against it continue; the plaintiffs' cross-motion for jurisdictional discovery was denied as moot.
• Carlstrand v. Mannington Mills (In re New York City Asbestos Litigation) (New York Supreme Court, 2019). The trial court denied defendant Mannington Mills, Inc.'s motion for summary judgment dismissing the plaintiffs' complaint and all cross-claims, so the plaintiffs' claims against it continue.
• Rosen v. Fisher Scientific Co. (In re New York City Asbestos Litigation) (New York Supreme Court, 2019). The trial court denied Fisher Scientific Company, LLC's motion for summary judgment (and its alternative request for a hearing on plaintiff's experts' methodology), so plaintiff Michael Rosen's claims against Fisher go forward.
• Rothlein v. American Int'l Indus. (In re New York City Asbestos Litigation) (New York Supreme Court, 2019). The court granted American International Industries summary judgment only for decedent's alleged exposure to Clubman talc from 1982 through August 13, 1987, and denied the motion for the period from August 13, 1987 through 1995, including on punitive damages, so plaintiffs' remaining claims continue.
• Hernandez v. Whittaker, Clark & Daniels (In re New York City Asbestos Litigation) (New York Supreme Court, 2019). The court granted Whittaker, Clark & Daniels' summary judgment motion only for claims after 2004 and for talc sold to Johnson & Johnson for Baby Powder in 1976-1983, and denied it otherwise, so plaintiffs' claims over talc supplied to Avon for 1960-2004 and punitive damages go to trial.
• Lattanzio v. Rockwell Automation (In re New York City Asbestos Litigation) (New York Supreme Court, 2019). The court denied Rockwell Automation, as successor to Allen-Bradley, summary judgment dismissing plaintiffs' complaint and cross-claims, so plaintiffs Philip and Kathleen Lattanzio won the motion.
• Alleyne v. Revlon (In re New York City Asbestos Litigation) (New York Supreme Court, 2019). The court granted Revlon's summary judgment motion only as to the conspiracy cause of action, denied it on the remaining claims, denied plaintiff Alleyne's cross-motion to compel discovery, and granted Revlon a protective order.
• Linsky v. American Biltrite (In re New York City Asbestos Litigation) (New York Supreme Court, 2019). The court denied American Biltrite, Inc.'s motion for summary judgment dismissing plaintiff Allison Linsky's complaint and all cross-claims, finding fact issues on general and specific causation.
• Gayoso v. Nissan North America (In re New York City Asbestos Litigation) (New York Supreme Court, 2019). The court denied Nissan North America's motion to dismiss for lack of personal jurisdiction, finding the defense waived, and denied its alternative request to preclude plaintiffs' causation expert and for summary judgment on causation, so plaintiffs prevailed.
• Alleyne v. Whittaker Clark & Daniels (In re New York City Asbestos Litigation) (New York Supreme Court, 2019). The court granted Whittaker Clark & Daniels' summary judgment motion only as to punitive damages, claims after 2004, and Johnson & Johnson Baby Powder claims for 1986-1997, and denied it otherwise, so plaintiff Alleyne's remaining talc claims go to trial.
• Srica v. American Biltrite (In re New York City Asbestos Litigation) (New York Supreme Court, 2019). The court denied American Biltrite, Inc.'s motion for summary judgment to dismiss the plaintiffs' complaint and all cross-claims, finding fact issues on general and specific causation.
• Young v. Whittaker, Clark & Daniels (In re New York City Asbestos Litigation) (New York Supreme Court, 2019). The trial court denied defendant Whittaker, Clark & Daniels' motion for summary judgment, so plaintiffs Kim and J.C. Young's claims, including punitive damages, proceed to trial.
• Young v. Avon Prods. (In re New York City Asbestos Litigation) (New York Supreme Court, 2019). The court granted Avon Products' summary judgment motion only as to the conspiracy and loss of consortium claims, which were dismissed, and denied it on causation and punitive damages, so the plaintiffs' claims proceed 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.

123 A.D.3d 498 (2014)

1 N.Y.S.3d 20

In the Matter of NEW YORK CITY ASBESTOS LITIGATION.

CARL A. DISALVO, Respondent,

v.

A.O. SMITH WATER PRODUCTS et al., Defendants, and

NELES-JAMESBURY, INC., Appellant.

13746 190109/10

Decided December 11, 2014.

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

[*499] Concur—Gonzalez, P.J., Tom, Friedman, Acosta and Moskowitz, JJ.

Defendant failed to meet its initial burden of establishing prima facie that its product could not have contributed to the causation of plaintiff's asbestos-related injury (see Comeau v W.R. Grace & Co.—Conn., 216 AD2d 79, 80 [1st Dept 1995]; Reid v Georgia-Pacific Corp., 212 AD2d 462 [1st Dept 1995]). While defendant's representative proffered an affidavit in which he states that it was impossible for plaintiff to have observed valves with the name Neles-Jamesbury, the affidavit was conclusory and without specific factual basis, and thus did not establish the prima facie burden of a proponent of a motion for summary judgment (see JMD Holding Corp. v Congress Fin. Corp., 4 NY3d 373, 384-385 [2005]).

We decline to consider defendant's argument that it did not have a duty to warn of asbestos in the insulation used on its valves, a product that it did not manufacture, as the argument was made for the first time on appeal (see Gonzalez v Fidelity & Deposit Co. of Maryland, 119 AD3d 432 [1st Dept 2014]).

Sources

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