Mrjaj v. Air & Liquid Sys. Corp. (2021)

Our plain-English summary of Mrjaj v. Air & Liquid Sys. Corp. (New York Supreme Court, August 13, 2021).

Kathy Mrjaj, executrix of the estate of Pal Haidar, and Ana Haidar sued several companies after Mr. Haidar died of mesothelioma. He had worked as a laborer at the Hanna Furnace plant in Buffalo, New York, from about 1957 to 1959. He testified that outside specialists relined the refractory materials in the furnaces, and that he jackhammered bricks out of furnace chimneys. He could not name the contractor. Plaintiffs offered a document and testimony suggesting that an entity called International Chimney worked on furnace number 4 in 1957. They also offered interrogatory answers from another case in which International Chimney Corporation admitted installing asbestos-containing products. ICC disputed that it was the same company and moved for summary judgment. The court assumed the two were the same but held the evidence was still insufficient. No testimony showed that Mr. Haidar saw asbestos fibers coming from any ICC product or inhaled fibers from one. The court granted ICC summary judgment.

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, Erie
• Decided: August 13, 2021
• Citation: 2021 NY Slip Op 33535(U)
• Stage: Summary judgment
• Unpublished opinion. Many courts limit citing unpublished opinions as precedent.
• State: New York

Outcome. The court granted defendant International Chimney Corporation's motion for summary judgment and dismissed the plaintiffs' claims against it, because the evidence did not show decedent was exposed to asbestos from an ICC product.

What the court held. A defendant is entitled to summary judgment where plaintiffs offer no evidence creating a reasonable inference that the decedent was exposed to and inhaled asbestos fibers from that defendant's product, even if the company named in a document is presumed to be the defendant.

Issues decided: Wrongful Death and Survival, Product Identification, Successor Liability.

The people and their exposure

• Pal Haidar: mesothelioma; died

The defendants

• International Chimney Corporation (contractor)
• Air & Liquid Systems Corporation, as Successor by Merger to Buffalo Pumps Inc. (manufacturer)

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 33535(U)

KATHY MRJAJ, as Executrix of the Estate of Pal Haidar, deceased, and Ana Haidar, Individually

Plaintiffs,

v.

AIR & LIQUID SYSTEMS CORPORATION, as Successor by Merger to Buffalo Pumps Inc., etal

Defendants.

Index No. 810929/2019.

August 13, 2021.

Supreme Court, Erie County.

DECISION AND ORDER

DEBORAH A. CHIMES, J.S.C.

Defendant, International Chimney Corporation (hereinafter "ICC"), brings this motion to dismiss (NYCEF 008) pursuant the CPLR 3212, on the grounds that there is no evidence that they manufactured, sold or supplied any product or material which caused or contributed to the asbestos exposure of plaintiffs' decedent, Pal Haidar. Plaintiffs opposed the motion. In support of its motion, ICC submitted its Notice of Motion filed on October 20, 2020; Affirmation of Nicholas P. Fedorka, Esq., with attached exhibits, filed on October 20, 2020; and Reply Affirmation of Nicholas P. Fedorka, Esq., with attached exhibits, filed on July 9, 2021. In opposition to the Motion, plaintiffs submitted the Affirmation of Seth A. Dymond, Esq., with attached exhibits, filed on October 30, 2020.

Plaintiffs' decedent, Pal Haider, was diagnosed with mesothelioma. Plaintiffs commenced this action seeking to recover for damages associated with the pain and suffering and subsequent death of Pal Haidar caused by his mesothelioma. Pal Hadair worked as a laborer at the Hanna Furnace plant ("Hanna") in Buffalo, New York from approximately 1957 through 1959. Plaintiffs assert that in the course of decedent's employment he was exposed to asbestos fibers released by products sold, distributed and installed by ICC which caused or contributed to his mesothelioma.

ICC asserts that plaintiffs did not identify ICC in his Answers to Interrogatories, or his deposition testimony, constituting an admission that ICC did not contribute to the decedent's injuries. "The failure of plaintiffs to name [defendant] as a supplier in their response to interrogatories constitutes an admission that [defendant] was not a source of an asbestos-containing product to which plaintiff was exposed and [defendant]] thus established plaintiffs' action against it has no merit" (Matter of Eighth Jud. Dist. Asbestos Litig. [Gorzka], 28 AD3d 1191 [2006]). That failure shifts the burden to plaintiff to come forward with facts and conditions from which defendants' liability can be reasonably inferred (id.).

In opposition to the motion, plaintiffs submitted decedent's deposition testimony wherein decedent testified to working in the area of furnace number 2, 3 and 4 at Hanna. He also testified periodically the furnaces would be serviced by an outside contractor. Decedent explained the furnaces would be shut down to change the refractory materials inside the furnace and that prior to replacing the material, he would jackhammer the bricks inside the furnace chimneys to break them down. After the jackhammering was completed, decedent testified that "other people" and "outside specialists" would come to the plant and repair/reline the refractory materials in the furnaces. He was unable to identify the "outside specialists" or the company that employed the "other people".

Plaintiffs also submitted documentary evidence, (NYSEF Doc. 411) which was produced by Hanna in another action. Plaintiffs argue the document corroborates Haidar's testimony about the "outside specialists" that came to replace the refractory materials in the furnaces. Plaintiffs claim that this document identifies ICC as the outside contractor that performed the refractory work at Hanna and specifically on furnace number 4. Plaintiffs also submitted the deposition testimony of Richard Lohr, given in another case. Richard Lohr, defendant's representative, testified about the same document (an unredacted copy) and acknowledged that it referred to International Chimney. He further testified the

International Chimney that was "in existence at that time" was the general contractor and performed the work on furnace number 4 in 1957 at Hanna Furnaces (NYSEF Doc 457 pages 137-145).

Finally, plaintiffs submitted answers to interrogatories given by ICC in an unrelated case. In those interrogatories ICC admits to installing asbestos-containing mastic coating, refractory cement, refractory bricks, and rope gaskets. The same material used at Hanna Furnace.

Defendant, also relying on the testimony of Richard Lohr pointed to the corporate history Lohr attested to. Specifically, that the International Chimney referred to in the document provided by plaintiffs was not the same as the named defendant. That the named defendant came into existence in 1962 when the various divisions of R.C. Siegel were sold off. He further explained that the named defendant works on chimneys and not glass or blast furnaces or boilers.

Accepting the evidence in the light most favorable to plaintiffs, it was established that the plaintiffs' decedent worked at Hanna from 1957 to 1959, and on occasion he jack-hammered refractory bricks from furnaces numbered 2, 3 and 4. Plaintiffs, though unable to identify the name of the outside contractor who worked on the furnaces, submitted a document that referenced an entity named International Chimney that worked on furnace number 4 in November 1957 and established that the work included the use of asbestos laden products. Though defendant challenges the identity of the entity named in the document as being the same as the named defendant, even if it is presumed to be one and the same, the evidence is insufficient to establish plaintiffs' decedent was exposed to asbestos fibers from the products presumably installed by defendant in 1957 or that such products caused his injuries. Specifically, there is no testimony that decedent saw asbestos fibers coming from any product used by ICC or that he was exposed to and inhaled asbestos fibers from such products. (See, Diel v Flintkote Company, 204 AD2d 53 [1st Dept. 1994]). In the absence of evidence creating a reasonable inference that decedent was exposed to asbestos from an ICC product, summary judgment must be granted (id.)

In accordance with this decision, it is hereby:

ORDERED, defendant ICC's motion for summary judgment is granted in all respects.

Sources

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