Shanahan v. Aerco Intl., Inc. (2019)

Our plain-English summary of Shanahan v. Aerco Intl., Inc. (New York Supreme Court, Appellate Division, May 16, 2019).

Michelle Shanahan sued several companies, including Algoma Hardwoods, Inc., over the mesothelioma and death of a man who worked in the New York City area. Algoma had made asbestos-core fire-rated doors from 1977 to 1980, according to its own account. It moved for summary judgment, saying through an affidavit from its principal that it never sold such doors in the New York metropolitan area. The First Department affirmed the denial of that motion. It assumed without deciding that Algoma's affidavit met its initial burden. It held that the plaintiff still raised triable issues. The decedent testified that he cut and drilled fire doors marked "Algoma" and breathed the white dust, during a period of 1982 or 1983 through 1992. City Board of Standards minutes from 1978 showed approvals moved to Algoma as new owner. Algoma's 1984 letter asked to revoke approvals for its asbestos-containing doors. The court said a trier of fact must weigh Algoma's explanations.

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, 1st Dept.
• Decided: May 16, 2019
• Citation: 172 A.D.3d 534
• Stage: Appeal from summary judgment
• State: New York

Outcome. The First Department affirmed the denial of Algoma Hardwoods' motion for summary judgment, so plaintiff Michelle Shanahan's claims against Algoma continue.

What the court held. Even assuming the defendant made a prima facie showing that its product could not have caused the injury, the plaintiff raised triable fact issues through testimony of exposure to the named product and documents contradicting the defendant's account of where and when it sold asbestos-core doors.

Issues decided: Causation, Product Identification.

The people and their exposure

• decedent (plaintiff Michelle Shanahan's decedent): mesothelioma; died

The defendants

• Algoma Hardwoods, Inc. (manufacturer)
• Aerco International, Inc.

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Krok v. The Nash Engineering Co. (Matter of New York City Asbestos Litigation) (New York Supreme Court, Appellate Division, 1st Dept., 2017). The Appellate Division, First Department, unanimously affirmed the trial court's denial of Nash Engineering Company's motion for summary judgment, so the plaintiff estate's claim against Nash continued.
• Berensmann v. Georgia-Pacific (Matter of New York City Asbestos Litig.) (New York Supreme Court, Appellate Division, 1st Dept., 2014). The appellate court dismissed the claims about Georgia-Pacific's wallboards because it never made asbestos wallboard, but otherwise affirmed the denial of Georgia-Pacific's summary judgment motion, so plaintiffs' joint compound claims proceed.

Later decisions citing this one

2 later decisions in our library cite this one:

• Fischer v. American Biltrite, Inc. (New York Supreme Court, Appellate Division, 1st Dept., 2020). The First Department reversed the order granting Burnham's motion for summary judgment dismissing the complaint, denied the motion so plaintiffs won, and dismissed the appeal from the denial of renewal as moot.
• Rivera v. Ericksson (In re New York City Asbestos Litigation) (New York Supreme Court, 2020). The trial court denied Ericksson, Inc.'s motion for summary judgment, which sought dismissal of the plaintiffs' complaint and all cross-claims, because it did not make a prima facie showing on causation.

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.

172 A.D.3d 534 (2019)

101 N.Y.S.3d 28

2019 NY Slip Op 03895

Michelle Shanahan, Respondent,

v.

Aerco International, Inc., etal., Defendants, and

Algoma Hardwoods, Inc., Appellant.

9331, 190011/17.

Decided May 16, 2019.

Appellate Division of the Supreme Court of New York, First Department.

Order, Supreme Court, New York County (Manuel J. Mendez, J.), entered September 12, 2018, which denied defendant Algoma Hardwoods, Inc.'s (defendant) motion for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs.

Concur—Gische, J.P., Kahn, Gesmer, Singh, Moulton, JJ.

Defendant was formed in connection with its 1977 purchase of certain assets from Champion International, a manufacturing company that fabricated asbestos-containing fire-rated doors in Algoma, Wisconsin. Defendant concedes that it manufactured and sold asbestos-core fire-rated doors from April 1977 through November 1980, when it contends that it switched to manufacturing and selling asbestos-free fire-rated doors. According to defendant, the doors manufactured and sold by it, as well as by Champion International prior to 1977, were all marked "Algoma Grade."

Defendant maintains that it established prima facie, through an affidavit by its principal, that it did not sell or distribute asbestos-core fire doors in the New York metropolitan area, where the decedent worked, and that therefore the decedent was not exposed to its product. The affidavit was based on the principal's personal knowledge but unaccompanied by documentation such as sales records substantiating the averments.

Even assuming, without deciding, that defendant met its prima facie burden to "unequivocally establish that its product could not have contributed to the causation of plaintiff's injury" during the relevant time period (Reid v Georgia-Pacific Corp., 212 AD2d 462, 463 [1st Dept 1995]; see also Matter of New York City Asbestos Litig., 146 AD3d 700, 700 [1st Dept 2017]; [*535] Matter of New York City Asbestos Litig., 122 AD3d 520, 521 [1st Dept 2014]), plaintiff demonstrates issues of triable fact.[*] In opposition to defendant's motion, plaintiff submitted the decedent's deposition testimony describing his work cutting and drilling fire-door product bearing the name Algoma on it during the relevant period and inhaling the white dust generated by the work, which raises an inference that "it is reasonably probable, not merely possible or evenly balanced," that the decedent was exposed to defendant's product and developed mesothelioma as a direct consequence (Healey v Firestone Tire & Rubber Co., 87 NY2d 596, 601 [1996]).

Plaintiff further pointed to minutes from a New York City Board of Standards (BOS) meeting on January 31, 1978 to contradict defendant's principal's assertion that defendant hired its first salesperson to cover custom-ordered direct sales in New York City commencing on March 1982 and that defendant was not authorized to sell doors in New York City until that time. As reflected in the minutes, BOS amended the approvals that it previously granted to Champion International for the manufacture and sale of fire-rated doors in New York City to reflect its approval of defendant as the new owner. Defendant's explanation, that this approval was only for Champion International's "Weldwood" brand fire-rated doors, which defendant decided not to manufacture and sell, is for the trier of fact to consider. Additionally, while defendant asserted that it only made asbestos-free fire-rated doors starting in November 1980, plaintiff pointed to, among other things, defendant's letter to BOS dated October 16, 1984. In the 1984 letter, defendant requested that BOS revoke its approvals for defendant's asbestos-containing fire-rated doors because "[w]e no longer manufacture the doors with this ingredient" and defendant is "currently approved" to manufacture doors with "our current asbestos-free formula." It is for the trier of fact to determine the weight to be accorded to defendant's statements and whether defendant's letter request, made nearly four years after

defendant asserts that it stopped manufacturing and selling asbestos-core fire-rated doors, undermines its position (see Feivel Funding Assoc. v Bender, 156 AD3d 416, 418 [1st Dept 2017]).

[*] The relevant time period is from 1982 (based on plaintiff's testimony) or 1983 (based on plaintiff's work records) through 1992.

Sources

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