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Matter of Cosgriff v Aerco Intl., Inc.

Supreme Court of New York, New York County

October 22, 2018, Decided

190121/2017

Opinion

Upon a reading of the foregoing cited papers, it is Ordered that Defendant CBS Corporation, f/k/a Viacom Inc., successor by merger to CBS Corporation, and f/k/a Westinghouse Electric Corporation's ("Westinghouse") motion for summary judgment pursuant to CPLR §3212 to dismiss Plaintiffs' complaint and all cross-claims against it is granted. The Complaint and all cross-claims against Defendant CBS Corporation are dismissed.

Plaintiff, John Cosgriff, diagnosed with lung cancer in 2017 (Moving Papers Exh. C, Answer 7A), alleges that his disease is due to asbestos exposure (Id. Exh. A). During his examination before trial Mr. Cosgriff testified that he was exposed to asbestos when he was a part-time bulldozer and payloader operator at the Jamaica Pollution Plant and a crane operator at the JFK airport and other worksites in Brooklyn and Queens (Cosgriff Dep. at 134-149, 163-171, 205, 221-222). He testified that, as a crane operator, he was also exposed to asbestos when he worked at the World Trade Center and at the Astoria and Ravenswood powerhouses (Id. at 237-242, 243:9-244:9, 247:12-13). He testified that he worked at the Astoria powerhouse for six months in the 1960s [*2]  or 1970s and for a "couple of months" at the Ravenswood powerhouse in the 1960s (Id). Plaintiffs commenced this action on April 12, 2017 to recover for injuries resulting from Mr. Cosgriff's asbestos exposure.

Westinghouse now moves for summary judgment pursuant to CPLR §3212 to dismiss Plaintiffs' Complaint and all cross-claims against it. Westinghouse contends that summary judgment is warranted because Plaintiffs have not proffered sufficient evidence to show that Mr. Cosgriff was exposed to asbestos from its turbines. Plaintiffs oppose the motion contending that Westinghouse failed to make a prima facie showing that its turbines could not have caused Mr. Cosgriff s lung cancer and, in any event, contend that issues of fact remain as to whether Mr. Cosgriffs asbestos exposure from Westinghouse turbines caused his lung cancer.

To prevail on a motion for summary judgment, the proponent must make a prima facie showing of entitlement to judgment as a matter of law, through admissible evidence, eliminating all material issues of fact (Klein v City of New York, 89 N.Y.2d 833, 675 N.E.2d 458, 652 N.Y.S.2d 723 [1996]). Once the moving party has satisfied these standards, the burden shifts to the opponent to rebut that prima facie  [**2]  showing, by producing contrary evidence, in admissible [*3]  form, sufficient to require a trial of material factual issues (Amatulli v Delhi Constr. Corp., 77 NY2d 525, 571 N.E.2d 645, 569 NYS2d 337 [1999]). In determining the motion, the court must construe the evidence in the light most favorable to the non-moving party (SSBSS Realty Corp. v Public Serv. Mut. Ins. Co., 253 A.D.2d 583, 677 N.Y.S.2d 136 [1st Dept. 1998]); Martin v Briggs, 235 AD2d 192, 663 NYS2d 184 [1st Dept. 1997]). Thus, a party opposing a summary judgment motion must assemble and lay bare its affirmative proof to demonstrate that genuine triable issues of fact exist (Kornfeld v NRX Tech., Inc., 93 AD2d 772, 461 NYS2d 342 [1983], aff'd 62 NY2d 686, 465 NE2d 30, 476 NYS2d 523 [1984]).

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2018 N.Y. Misc. LEXIS 4856 *; 2018 NY Slip Op 32712(U) **

 [**1]  IN RE: NEW YORK CITY ASBESTOS LITIGATION, JOHN COSGRIFF and ROSEMARY COSGRIFF, Plaintiff(s), -against- AERCO INTERNATIONAL, INC., et al., Defendants. INDEX NO. 190121/2017

Notice: THIS OPINION IS UNCORRECTED AND WILL NOT BE PUBLISHED IN THE PRINTED OFFICIAL REPORTS.

Prior History: Chalco v. Ajax Magnethermic Corp., 2018 N.Y. Misc. LEXIS 3050 (N.Y. Sup. Ct., July 13, 2018)

CORE TERMS

turbines, summary judgment, Plaintiffs', exposed to asbestos, powerhouse, deposition, Papers, asbestos exposure, interrogatories, Asbestos, issue of fact, cross-claims, facie, pipe