Root v. Eastern Refractories Co., Inc. (2004)

Our plain-English summary of Root v. Eastern Refractories Co., Inc. (New York Supreme Court, Appellate Division, December 30, 2004).

Paul Root, as executor of Edward Root's estate, sued Eastern Refractories Co. and other defendants. Edward Root worked for over 40 years as a journeyman insulator, from 1950 to 1993. He was diagnosed with asbestosis in 1995 and mesothelioma in 2002. The estate claimed he was exposed to asbestos in a product called ERCO-Mat, which Eastern distributed, while working for a contractor at Syracuse University in 1962-1964 and 1967-1968. Eastern moved for summary judgment. It offered an employee's affidavit saying it supplied no asbestos-containing materials to Syracuse University jobs in the 1960s, that it did not manufacture ERCO-Mats, and that they were made of fiberglass. The trial court dismissed the complaint against Eastern. The Appellate Division reversed. It accepted that Eastern had made its initial showing. But Root testified that he used ERCO-Mat blankets containing asbestos at the university. The employee's testimony in another case also said Eastern sold ERCO-Mat blankets to Root's employer there. The court held that this raised a factual question requiring a trial, denied the motion, and reinstated the complaint.

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, 4th Dept.
• Decided: December 30, 2004
• Citation: 13 A.D.3d 1187
• Stage: Appeal from summary judgment
• State: New York

Outcome. The Appellate Division reversed the order granting summary judgment to Eastern Refractories Co., denied the motion, and reinstated the executor's complaint against Eastern.

What the court held. A defendant that shows it supplied no asbestos-containing product to the job site is met by the plaintiff's showing of a triable issue; the decedent's own testimony that he used asbestos-containing ERCO-Mat blankets at the site is enough to defeat summary judgment.

Issues decided: Trial Procedure and Discovery, Product Identification.

The people and their exposure

• Edward Root: asbestosis, mesothelioma; died

The defendants

• Eastern Refractories Co., Inc. (supplier)

Later decisions citing this one

5 later decisions in our library cite this one:

• 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.
• Piepke v. Insulation Distributors (In re Eight Judicial District Asbestos Litigation) (New York Supreme Court, Erie, 2020). The trial court denied the motions of Insulation Distributors, Inc. and Niagara Insulations, Inc. for summary judgment, ruling for plaintiff, and deferred the punitive damages issue until after the liability and damages trial.
• Scainetti v. BW/IP (Matter of New York City Asbestos Litig.) (New York Supreme Court, 2015). The trial court denied BW/IP's motion for summary judgment seeking dismissal of plaintiff Jack Scainetti's claims, so the claims against BW/IP go forward.
• Lefrak v. American Biltrite (Matter of New York City Asbestos Litig.) (New York Supreme Court, 2015). The court denied defendant American Biltrite's motion for summary judgment, so plaintiff Richard Lefrak's claims against it continue.
• Galasso v. BF Goodrich (Matter of New York City Asbestos Litig.) (New York Supreme Court, 2015). The trial court denied BF Goodrich's motion for summary judgment dismissing the Galassos' complaint and all claims and cross-claims against it, so plaintiffs prevailed on the motion.

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.

13 A.D.3d 1187 (2004)

787 N.Y.S.2d 586

PAUL E. ROOT, as Executor of EDWARD ROOT, Deceased, Appellant,

v.

EASTERN REFRACTORIES CO., INC., Respondent, etal., Defendants.

December 30, 2004.

Appellate Division of the Supreme Court of the State of New York, Fourth Department.

Present — Pigott, Jr., P.J., Hurlbutt, Gorski, Martoche and Smith, JJ.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously reversed on the law without costs, the motion is denied and the complaint against defendant Eastern Refractories Co., Inc., is reinstated. Memorandum:

Plaintiff's decedent allegedly was exposed to asbestos during over 40 years of employment as a journeyman insulator for the Asbestos Workers Union from 1950-1993. In 1995, he was diagnosed with asbestosis and, in 2002, he was diagnosed with mesothelioma. Plaintiff contends that decedent was exposed to a product known as an ERCO-Mat that contained asbestos during two separate periods of employment with a contractor at Syracuse University, the first between 1962 and 1964, and the second between 1967 and 1968. ERCO-Mats were distributed by defendant Eastern Refractories Co., Inc. (Eastern). Eastern moved for summary judgment dismissing the [*1188] complaint against it on the ground that it did not supply any product containing asbestos to Syracuse University in the relevant time period. In support of that motion, Eastern submitted a deposition transcript and an affidavit from David Feinzig, who had worked for the company since 1948. He averred that Eastern did not supply or distribute any asbestos-containing materials at any job sites at Syracuse University during the 1960s, that ERCO-Mats were not manufactured by Eastern, and that, in any event, they did not contain asbestos filler, but were made of fiberglass. In opposition to the motion, plaintiff submitted Feinzig's deposition testimony from a different case, as well as decedent's deposition testimony. Decedent testified unequivocally that he used ERCO-Mat blankets and that they contained asbestos. Feinzig testified that in the 1960s there was a transition period when, instead of using asbestos cloth, Eastern used glass cloth because the filler in the blankets was made of glass, and he admitted that Eastern sold ERCO-Mat blankets to decedent's employer at Syracuse University.

Supreme Court erred in granting the motion for summary judgment dismissing the complaint against Eastern. Eastern met its initial burden on the motion by establishing that it supplied no asbestos-containing products in the 1960s to job sites at Syracuse University (see Matter of Eighth Jud. Dist. Asbestos Litig., 269 AD2d 749, 750 [2000]; Matter of New York City Asbestos Litig., 216 AD2d 79, 80 [1995]; Zankowski v Johns-Manville Corp., 204 AD2d 1023 [1994]). Plaintiff, however, met his burden of showing facts sufficient to require a trial (see CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Decedent testified that he was exposed to asbestos while working at Syracuse University using ERCO-Mat blankets. That testimony is sufficient to raise a triable issue of fact (see Eighth Jud. Dist. Asbestos Litig., 269 AD2d at 750).

Sources

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