Miranda v. Abex Corp. (N.Y. Sup. Ct., Feb. 9, 2010)

Our plain-English summary of Miranda v. Abex Corp. (New York Supreme Court, February 9, 2010).

Ernesto Miranda, diagnosed in December 2007 with malignant pleural mesothelioma, and his wife Diana sued several defendants over alleged asbestos exposure. Mr. Miranda said that from 1970 to 1975 he worked on about 20 to 25 cars and changed brakes as favors for friends, and that he recalled "some Goodyears definite." Goodyear moved for summary judgment, arguing it never manufactured or sold automotive brakes or linings to local retail or auto-parts stores, so he could not have used them. Plaintiffs relied on his testimony and on Goodyear's 1990 answers to a questionnaire in another case, in which Goodyear described itself as an installer of brake service and a reseller of branded products. Goodyear's later affidavit disputed that reading. The court found that this conflict strengthened the existence of a factual dispute. It held that the testimony, the questionnaire answers and the new affidavit raised issues of fact about the source of Mr. Miranda's exposure, and it denied the motion.

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: February 9, 2010
• Citation: 2010 NY Slip Op 30315(U)
• Stage: Summary judgment
• Unpublished opinion. Many courts limit citing unpublished opinions as precedent.
• State: New York

Outcome. The court denied Goodyear's motion for summary judgment against plaintiffs Ernesto and Diana Miranda because factual issues remained about whether Mr. Miranda was exposed to asbestos in Goodyear-branded brakes.

What the court held. A defendant seeking summary judgment on product identification must make a prima facie showing that its product could not have contributed to the plaintiff's injury; a plaintiff's deposition testimony recalling the defendant's brand, with conflicting defendant evidence, raises a triable issue of fact.

Issues decided: Product Identification.

The people and their exposure

• Ernesto Miranda: pleural mesothelioma

The defendants

• ABEX Corporation f/k/a The Goodyear Tire & Rubber Company (manufacturer)

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.

2010 NY Slip Op 30315(U)

ERNESTO MIRANDA and DIANA MIRANDA, Plaintiffs,

v.

ABEX CORPORATION, et. al., (GOODYEAR) Defendants.

104346/08.

February 9, 2010.

Supreme Court, New York County.

DECISION AND ORDER

SHERRY KLEIN HEITLER, J.S.C.

In this personal injury action relating to an alleged asbestos exposure, defendant ABEX Corporation f/k/a The Goodyear Tire & Rubber Company ("Goodyear"), moves for summary judgment dismissing all claims and cross claims against it brought by plaintiffs, Ernesto Miranda ("Mr. Miranda") and Diana Miranda, on the grounds that Goodyear never manufactured nor distributed the asbestos-containing products that plaintiffs allege Mr. Miranda used.

Mr. Miranda, who is 58 years old, was diagnosed with malignant pleura] mesothelioma on December 12, 2007. Thereafter, Mr. Miranda filed a cause of action against various defendants, requesting damages for exposure to asbestos-containing products. Shortly after the cause of action was filed, Mr. Miranda was deposed extensively over eight days. During his lifetime, Mr. Miranda was a car-aficionado. He would often fix cars and change car brakes as favors to friends. Specifically, Mr. Miranda testified in his deposition that during the years ranging from 1970 through 1975, he fixed and worked on approximately 20 to 25 automobiles. (Miranda Deposition of June 17, 2008, 710:14-712:10, Exhibit E to Notice of Motion dated July 14, 2009 ["Notice of Motion"].) Mr. Miranda alleges he was exposed to asbestos containing Goodyear brakes through the use of such products while fixing cars. (Id. at 710:17-712:10.)

During his deposition, when Mr. Miranda was questioned as to whether he recalled any of the brake brands used to repair automobiles in the 1970's, he stated "I recall some Goodyears definite." (Exhibit E to Notice of Motion, 712:5-10.) In response to this, Goodyear argues that it never manufactured and never sold automotive brakes or linings to local retail or auto-parts stores for resale. Thus, Goodyear moves for summary judgment on the ground that Goodyear automotive brakes or linings could not have been used by Mr. Miranda and his friends since they were never available in the local market for resale. (Affidavit of Richard Lyda, sworn to June 26, 2009, Exhibit L to Notice of Motion.)

Plaintiffs argue, however, that Goodyear did in fact sell asbestos-containing automotive brakes and linings to local retail stores during the time that Mr. Miranda was exposed. In support of this, plaintiffs present Mr. Miranda's testimony and Goodyear's "Answers to Plaintiff's Questionnaire and First Request for Production of Documents," ("Questionnaire") completed by Goodyear for a separate case in 1990. In the Questionnaire, Goodyear admitted to selling automotive brake products in the local or retail market. Goodyear responded to Interrogatory 2(n) that it was "[b]oth an installer for customers calling on Goodyear company retail auto service stores for brake service and a reseller to retail tire and automotive service stores buying and selling Goodyear tires and other Goodyear branded products." (Timmins Affirmation in Opposition to the Motion for Summary Judgment by Defendant Goodyear Tire & Rubber Company dated September 23, 2009, Exhibit 3, page 13, subsection n ["Affirmation in Opposition"].) In subsection b of the Questionnaire, Goodyear expressed that it was not the manufacturer of the brake products it was installing and selling to tire and automotive service stores retail. (Id. at subsection b.)

In its "Reply Affirmation in Further Support of the Goodyear Tire & Rubber Company's Motion for Summary Judgment," ("Reply Affirmation") Goodyear introduced new evidence in the form of an affidavit, in an apparent effort to clarify the information that the plaintiffs rely on as contained in the Questionnaire. (See Affidavit of Richard Lyda, sworn to October 22, 2009, Exhibit A to Reply Affirmation.) The Lyda Affidavit says that, "[n]either the question asked nor the response provided by Goodyear states that Goodyear sold brakes or brake linings to local or chain parts stores, or that Goodyear sold brake

parts over the counter to the retail public. Goodyear never manufactured brake linings for automobiles...." (Id.) Insofar as this is in direct conflict with Mr. Miranda's testimony and the Questionnaire, this only goes to strengthen the plaintiffs' assertion of the existence of an issue of facts.

"The function of a court entertaining a motion for summary judgment is one of issue finding, not issue determination." (Dollas v. W.R. Grace and Co., 225 A.D.2d 319, 321 (1st Dept., 1996).) "[T]he issue is not whether plaintiffs can ultimately establish liability, but, rather, whether there exists a substantial issue of fact in the case on the issue of liability which requires a plenary trial." (Barr v. Albany County, 50 N.Y.2d 247, 254 [1980].) Plaintiffs are not required to show a precise cause of their damages, but only to show facts and conditions from which defendant's liability may be reasonably inferred. "That is, that... plaintiff was exposed to defendant's product." (Comeau v. W.R. Grace & Co. Conn., 216 A.D.2d 79, 80 (1st Dept., 1995).)

To obtain summary judgment, a defendant must, without relying on mere conclusions or unsubstantiated allegations, "make a prima facie showing that its product could not have contributed to the causation of the plaintiff's injury." (Comeau v. W.R. Grace & Co. Conn., 216 A.D.2d 79, 80 (1st Dept., 1995)); Zuckerman v. City of New York, 49 N.Y.2d 557, 562 [1980].) "It must clearly appear that no material and triable issue of fact is presented.... This drastic remedy should not be granted where there is any doubt as to the existence of such issues..., or where the issue is 'arguable'...." (Sillman v. Twentieth Century Fox Film Corp., 3 N.Y.2d 395, 404 [1957].)

The deposition testimony of a plaintiff "constitutes evidence in admissible form by someone with personal knowledge of the facts." ((Joshephson v. Crane Club, Inc., 264 A.D.2d 359, 360 (1st Dept., 1999) and it "is sufficient to raise an issue of fact so as to preclude the grant of summary judgment dismissing the complaint." (Dollas v. W.R. Grace and Co., 225 A.D.2d 319, 321 (1st Dept., 1996).)

In this case, the deposition testimony of Mr. Miranda, in which he specifically recalls using brakes branded with the name Goodyear, together with Goodyear's Questionnaire answers and the new affidavit introduced by Goodyear in its Reply Affirmation, are sufficient to raise issues of fact relative to the origin of Mr. Miranda's exposure to asbestos. Accordingly, defendant's motion for summary judgment is denied.

This shall constitute the decision and order of the court.

Sources

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