Savianeso v. Aerco Intl., Inc. (2024)

Our plain-English summary of Savianeso v. Aerco Intl., Inc. (New York Supreme Court, March 25, 2024).

June Savianeso sued many companies over the mesothelioma of her late husband (the opinion calls him plaintiff-decedent), Michael Savianeso. One defendant, QCP, sued here as Bakers Pride, was the maker of ovens. The claim against it rested on secondhand exposure to asbestos dust from Bakers Pride ovens, said to have reached Mr. Savianeso through his brother. Bakers Pride moved for summary judgment, offering expert evidence that secondhand exposure from his brother could not have been enough to cause the disease. Plaintiff offered a conflicting expert. The New York County Supreme Court applied the rule that the moving defendant must affirmatively show its product could not have contributed to the injury. It found Bakers Pride met that burden. It found plaintiff's expert report did not quantify how much asbestos the secondhand exposure would have caused, so it did not raise a factual dispute. The court granted the motion, dismissed the complaint against Bakers Pride with costs, and severed the case, which continued against the other defendants.

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: March 25, 2024
• Citation: 2024 NY Slip Op 31002(U)
• Stage: Summary judgment
• Unpublished opinion. Many courts limit citing unpublished opinions as precedent.
• State: New York

Outcome. The trial court granted defendant QCP (Bakers Pride)'s motion for summary judgment and dismissed the complaint against it, ruling against plaintiff June Savianeso; the action continued against the other defendants.

What the court held. A moving defendant must affirmatively show its product could not have contributed to the plaintiff's disease; the court found Bakers Pride met that burden and plaintiff's expert, who did not quantify the secondhand exposure, did not raise a factual issue.

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

The people and their exposure

• Michael Savianeso (family member): mesothelioma; died

Who	Work	Where	When	Products
Michael Savianeso	brother of a worker who used Bakers Pride ovens; dust brought home			Bakers Pride ovens (QCP, Inc.)

The defendants

• QCP, Inc., individually and as successor to Bakers Pride Oven Company, Inc. (manufacturer)

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 31002(U)

JUNE SAVIANESO, Plaintiff,

v.

AERCO INTERNATIONAL, INC, AMCHEM PRODUCTS, INC., N/K/A RHONE POULENC AG

COMPANY, N/K/A BAYER CROPSCIENCE INC, BALLANTYN STRONG INC, BLODGETT

CORPORATION, BMCE INC., F/K/A UNITED CENTRIFUGAL PUMP, BRIGGS & STRATTON CORP,

CBS CORPORATION, F/K/A VIACOM INC., SUCCESSOR BY MERGER TO CBS CORPORATION,

F/K/A WESTINGHOUSE ELECTRIC CORPORATION, COMPUDYNE CORPORATION, INDIVIDUALLY,

AND AS SUCCESSOR TO YORK SHIPLEY, INC, DAVID FABRICATORS INC A/K/A DAVID ASBESTOS

CORP, DEERE & CO, ECHO INCORPORATED, GENERAL ELECTRIC COMPANY, GOULD

ELECTRONICS INC, HARSCO CORPORATION, AS SUCCESSOR TO PATTERSON-KELLEY

COMPANY, INC., INDIVIDUALLY AND D/B/A PATTERSON-KELLEY, HONEYWELL INTERNATIONAL,

INC., F/K/A ALLIED SIGNAL, INC./BENDIX, KARNAK CORPORATION, LEVITON MANUFACTURING

CO., INC, MORSE TEC LLC, PB HEAT LLC, INDIVIDUALLY AND AS SUCCESSOR IN INTEREST TO

PEERLESS INDUSTRIES, PEERLESS INDUSTRIES, INC, PFIZER, INC. (PFIZER), PULSAFEEDER,

QCP, INC., INDIVIDUALLY AND AS SUCCESSOR TO BAKERS PRIDE OVEN COMPANY, INC, RHEEM

MANUFACTURING COMPANY, SCHNEIDER ELECTRIC USA, INC. FORMERLY KNOWN AS SQUARE

D COMPANY, SIEMENS INDUSTRY, INC., SUCCESSOR IN INTEREST TO SIEMENS ENERGY &

AUTOMATION, INC, SIGNIFY.COM, STIHL INC, STRAND LIGHTING, INC, STRONG LIGHTING,

INDIVIDUALLY AND AS SUCCESSOR IN INTEREST TO SUPER TROUPER, TECUMSEH POWER,

TECUMSEH PRODUCTS COMPANY, THE TORO 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, BALLANTYNE OF

OMAHA, INC. INDIVIDUALLY AND AS SUCCESSOR TO STRONG ELECTRIC CORP AND STRONG

INTERNATIONAL, FEDDERS CORP, FMC CORPORATION, ON BEHALF OF ITS FORMER CHICAGO

PUMP & NORTHERN PUMP BUSINESSES, FORD MOTOR COMPANY, GOULDS PUMPS LLC, ITT

LLC., INDIVIDUALLY AND AS SUCCESSOR TO BELL & GOSSETT AND AS SUCCESSOR TO

KENNEDY VALVE MANUFACTURING CO., INC., KOHLER CO., LENNOX INDUSTRIES, INC., PK&P

INVESTMENT CO. F/K/A MOLE RICHARDSON CO, TACO, INC., WOOLSULATE CORPORATION,

STRAND LIGHTING LLC INDIVIDUALLY AND SUCCESSOR IN INTEREST TO RANK AMERICA INC.,

RANK INDUSTRIES INC., RANK INDUSTRIES AMERICA INC., CENTURY STRAND INC., STRAND

ELECTRIC, INC., STRAND LIGHTING INC., SLI INC., STRAND CENTURY INC., AND DOE

CORPORATION, SIGNIFY NORTH AMERICA CORPORATION F/K/A PHILLIPS LIGHTING,

INDIVIDUALLY AND AS SUCCESSOR IN INTEREST TO RANK AMERICA INC., RANK INDUSTRIES,

INC., AND RANK INDUSTRIES AMERICA INC., CENTURY STRAND INC., STRAND ELECTRIC INC.,

STRAND LIGHTING, SLI INC., Defendant.

Index No. 190040/2020, Motion Seq. No. 003.

March 25, 2024.

Supreme Court, New York County.

DECISION + ORDER ON MOTION

ADAM SILVERA, J.S.C.

It is ordered that the instant motion for summary judgment seeking dismissal of this action, pursuant to CPLR § 3212, is granted for the reasons set forth below.

Here, defendant QCP ("Bakers Pride") moves to dismiss this action on the grounds that plaintiff, June Savianeso, cannot establish causation from secondhand exposure to asbestos dust from Bakers Pride ovens on behalf of plaintiff-decedent, Michael Savianeso ("Mr. Savianeso"). Defendant Bakers Pride proffers expert evidence to establish that secondhand exposure from plaintiff-decedent's brother would be insufficient to have caused Mr. Savianeso's mesothelioma. See Memorandum of Law in Support of Defendant QCP's Motion for Summary Judgment, p. 5-6. In opposition, plaintiff offers conflicting expert evidence regarding causation. See Plaintiffs' Affirmation in Opposition to Defendant QCP's Motion for Summary Judgment, p. 14-16.

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 moving defendant Bakers Pride can be found in Dyer v Amchem Products Inc., 207 AD3d 408, 409 (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., 2023 NY Slip Op 05796 (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, the Court finds that Bakers Pride has established its prima facie burden that their product could not have contributed to Mr. Savianeso's mesothelioma from the alleged exposure. While plaintiff submits a conflicting expert report, such report does not quantify the amount of asbestos that secondhand exposure would have caused. See Affirmation in Opposition to Motion, Exh. 2, p. 22. Here, plaintiff has not provided sufficient evidence to establish issues of fact regarding plaintiff-decedent's secondhand exposure to defendant's products.

Accordingly, it is

ORDERED that defendant Bakers Pride's motion for summary judgment is granted; and it is further

ORDERED that the complaint is dismissed in its entirety against defendant Bakers Pride with costs and disbursement to said defendant as taxed by the Clerk of the Court, and the Clerk is directed to enter judgment accordingly in favor of said defendant; and it is further

ORDERED that the action is severed and continued against the remaining defendants; and it is further ORDERED that the caption be amended to reflect the dismissal and that all future papers filed with the court bear the amended caption; and it is further

ORDERED that within 30 days of entry defendant Bakers Pride 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