Pefanis v. AO Smith Water Prods. Co. (N.Y. Sup. Ct., Oct. 2, 2024)

Our plain-English summary of Pefanis v. AO Smith Water Prods. Co. (New York Supreme Court, October 2, 2024).

Jennifer Pefanis, as executrix of the estate of Anna Buczynski, sued several companies, including DAP, Inc. Ms. Buczynski was diagnosed with mesothelioma in December 2017 and died in March 2018. The claim was that she was exposed to asbestos by laundering the work clothes of her former husband, Anthony Buczynski. From 1976 to 2000 he used DAP caulking and glazing products in homes the couple shared and for customers of his hardware business. He testified that dust covered his clothes. DAP moved for summary judgment, arguing that not all its caulks contained asbestos and that specific causation was not shown; in reply it withdrew the first argument. The court denied the motion. It found that Mr. Buczynski's testimony identified DAP products as a source of exposure. A former DAP employee's affidavits did not show personal knowledge that no asbestos-containing DAP products were in use, and they confirmed some DAP caulk formulations contained asbestos. The court also found the experts disagreed on causation, which created a fact question. Under First Department precedent, DAP had to show its products could not have contributed to the illness, and it did not.

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: October 2, 2024
• Citation: 2024 NY Slip Op 33502(U)
• Stage: Summary judgment
• State: New York

Outcome. The court denied defendant DAP, Inc.'s motion for summary judgment in its entirety, so the plaintiff executrix's claim against DAP continues.

What the court held. On summary judgment in an asbestos case, the defendant must unequivocally establish that its product could not have contributed to the plaintiff's injury; conflicting testimony and competing expert opinions raise fact issues that preclude judgment.

Issues decided: Causation, Expert Testimony, Product Identification, Take-Home Exposure.

The people and their exposure

• Anna M. Buczynski (family member): mesothelioma; died

Who	Work	Where	When	Products
Anna M. Buczynski	spouse who laundered work clothes; dust brought home	homes shared with her husband	1976-2000	DAP caulking and glazing products

The defendants

• DAP, Inc. (manufacturer)

Other decisions in this case

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

• Pefanis v. AO Smith Water Prods. Co. (August 21, 2024). The court denied the summary judgment motions of Donald Durham Company and Vanderbilt Minerals, LLC in full, so the estate's claims, including the punitive damages claim against Vanderbilt, go forward.

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Sason v. Dykes Lumber Co., Inc. (New York Supreme Court, Appellate Division, 1st Dept., 2023). The Appellate Division affirmed the denial of Dykes Lumber Company's summary judgment motion, so plaintiff Raphael Sason's claims against Dykes Lumber continue.
• Reid v. Georgia-Pac. Corp. (New York Supreme Court, Appellate Division, 1st Dept., 1995). The Appellate Division affirmed the denial of Rapid-American Corporation's motion for summary judgment, so plaintiff Kenneth Reid's claim against it continues.

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.

2024 NY Slip Op 33502(U)

JENNIFER PEFANIS, AS EXECUTRIX FOR THE ESTATE OF ANNA M. BUCZYNSKI, Plaintiff,

v.

A.O. SMITH WATER PRODUCTS CO, AMCHEM PRODUCTS, INC., N/K/A RHONE POULENC AG

COMPANY, N/K/A BAYER CROPSCIENCE INC, DAP, INC, DONALD DURHAM COMPANY, GENERAL

ELECTRIC COMPANY, H.M. ROYAL, INC, PFIZER, INC. (PFIZER), PECORA CORPORATION, R.T.

VANDERBILT HOLDING COMPANY, INC, SHERWIN WILLIAMS COMPANY, U.S. RUBBER COMPANY

(UNIROYAL), UNION CARBIDE CORPORATION, WEIL-MCLAIN, A DIVISION OF THE MARLEY-

WYLAIN COMPANY, A WHOLLY OWNED SUBSIDIARY OF THE MARLEY COMPANY, LLC,

VANDERBILT MINERALS LLC INDIVIDUALLY AND AS SUCCESSOR IN INTEREST TO

INTERNATIONAL TALC COMPANY, INC., Defendant.

Index No. 190302/2020, Motion Seq. No. 003

Motion June 11, 2024.

October 2, 2024.

Supreme Court, New York County.

DECISION + ORDER ON MOTION

ADAM SILVERA, J.S.C.

It is hereby ordered that Defendant DAP, Inc.'s (hereinafter referred to as "DAP") motion for summary judgment is denied for the reasons set forth below.

The instant matter is premised upon plaintiff Anna M. Buczynski's alleged exposure to asbestos as a result of laundering her former husband Anthony Buczynski's clothing. From 1976 to 2000, Mr. Buczynski used DAP's caulking and glazing products in various homes he shared with plaintiff, as well as for servicing customers of his hardware business. Mr. Buczynski testified that asbestos dust would cover his clothes from work, which he would wear home, and that Ms. Buczynski did the laundry the majority of the time they were married. Plaintiff was subsequently diagnosed with mesothelioma on December 11, 2017, and passed away on March 21, 2018.

DAP moves to dismiss this action on the basis that plaintiff's claim is "speculative" because not all DAP caulks historically contained asbestos, and that plaintiff failed to establish specific causation. See Memorandum of Law in Support of Defendant DAP, Inc. k/n/a La Mirada Products Co., Inc.'s Motion for Summary Judgment, p. 11-14. Plaintiff opposes, arguing that moving defendant did not prove that its products could not have caused plaintiff asbestos-related illness and highlighting plaintiff's former husband's testimony, as well as that of plaintiff's experts. Defendant replies and withdraws its speculation argument.

The Court notes that summary judgment is a drastic remedy and should only be granted if the moving party has sufficiently established that it is warranted as a matter of law. See Alvarez v Prospect Hosp., 68 NY2d 320, 324 (1986). "The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case". Winegrad v New York University Medical Center, 64 NY2d 851, 853 (1985). Despite the sufficiency of the opposing papers, the failure to make such a showing requires denial of the motion. See id. at 853.

Additionally, summary judgment motions should be denied if the opposing party presents admissible evidence establishing that there is a genuine issue of fact remaining. See Zuckerman v City of New York, 49 NY2d 557, 560 (1980). "In determining whether summary judgment is appropriate, the motion court should draw all reasonable inferences in favor of the nonmoving party and should not pass on issues of credibility." Garcia v J.C. Duggan, Inc., 180 AD2d 579, 580 (1st Dep't 1992), citing Dauman Displays, Inc. v Masturzo, 168 AD2d 204 (1st Dep't 1990). The court's role is "issue-finding, rather

than issue-determination". Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 (1957) (internal quotations omitted).

As such, summary judgment is rarely granted in negligence actions unless there is no conflict at all in the evidence. See Ugarriza v Schmieder, 46 NY2d 471, 475-476 (1979). Furthermore, the Appellate Division, First Department has held that on a motion for summary judgment, it is moving defendant's burden "to unequivocally establish that its product could not have contributed to the causation of plaintiff's injury". Reid v Georgia-Pacific Corp., 212 AD2d 462, 463 (1st Dep't 1995). The appropriate standard at summary judgment for defendant DAP can be found in Dyer v Amchem Products Inc., 207 AD3d 408, 40 (1st Dep't 2022). In Dyer, defendants were granted summary judgment not by "simply argu[ing] that plaintiff could not affirmatively prove causation" but by "affirmatively prov[ing], as a matter of law, that there was no causation." Id. The Appellate Division, First Department, recently affirmed this Court's decision in Sason v Dykes Lumber Co., Inc., et. al., 221 AD3d 491, 492 (1st Dep't 2023), stating that "the parties' competing causation evidence constituted the classic `battle of the experts'" sufficient to raise a question of fact, and to preclude summary judgment.

Here, defendant DAP has failed to affirmatively establish that Mr. Buczynski's alleged exposure to asbestos from DAP products could not have contributed to plaintiff's illness. The Court finds that Mr. Buczynski provided unequivocal testimony identifying defendant DAP products as a source of his asbestos exposure. See Plaintiff's Affirmation in Opposition to Defendant DAP Inc's Motion for Summary Judgment, p. 4-8. In addition, defendant DAP relies heavily upon three affidavits from a former DAP employee, Ward Treat, to establish that asbestos was removed from DAP, Inc's entire product lines by 1978. See Memorandum of Law in Support, supra, Exhs. B, C, and D, Affidavits of Ward Treat dated March 1, 2011, Sept. 16, 2009, and April 15, 2014, respectively. Mr. Treat does not possess the requisite personal knowledge to establish that no DAP products containing asbestos were in circulation and used by Mr. Buczynski. Furthermore, it confirms that some formulations of DAP caulk contained asbestos. Given the unequivocal testimony of Mr. Buczynski, and the conflicting statements of Mr. Treat, sufficient issues of fact exist to preclude summary judgment. See Plaintiff's Affirmation in Opposition, supra.

As to causation, DAP provides a case-specific expert affidavit and report from Robert C. Adams, CIH, CSP, FAIHA, in which he concludes that "it is highly unlikely that Ms. Buczynski had any asbestos exposures from Mr. Buczynski's use of DAP caulk or glazing products, or from her handling of Mr. Buczynski's dirty work clothing that would have been greater than the ambient background concentrations of asbestos that would be present in the atmosphere." See Memorandum of Law in Support, supra, Exh. K, Affidavit and Report of Robert C. Adams, MS, CIH, CSP, FAIHA, p. 11, dated February 26, 2024 and December 20, 2023, respectively. Contrarily, plaintiff's expert, Dr. Mark Ginsburg, specifically reviewed plaintiff's exposure to provide causation analysis and concludes that "[Mr. Buczynski's] described exposure to DAP caulking, when he applied, chiseled, removed, and sanded asbestos containing DAP caulking; individually and cumulatively caused Ms. Buczynski's malignant mesothelioma". See Plaintiff's Affirmation in Opposition, supra, Exh. 11, Report of Dr. Mark Ellis Ginsburg, MD, dated April 19, 2024, p. 27.

As defendant DAP has failed to "establish that its products could not have contributed to the causation of plaintiff's injury" as stated in Reid v Georgia-Pacific Corp., supra., and a reasonable juror could determine that asbestos exposure from DAP products was a contributing cause of plaintiff's illness, sufficient issues of fact exist to preclude summary judgment. Accordingly, it is

ORDERED that defendant DAP's motion for summary judgment is denied in its entirety; and it is further ORDERED that within 30 days of entry plaintiff shall serve all parties with a copy of this Decision/Order with notice of entry. This constitutes the Decision/Order of the Court.

Sources

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