Decedent’s Incomplete Testimony Found Sufficient to Overcome Summary Judgment as Pump Manufacturer Should Have Re-noticed His Deposition to Question Him Prior to His Death

In this NYCAL case, it is alleged that the decedent, Warren Taveniere, was exposed to asbestos while working aboard several vessels as a Merchant Marine for Moore McCormack Lines from 1953 to 1955. The plaintiff’s interrogatory responses included Aurora Pump Company and at his deposition, the decedent testified that he used asbestos-containing gaskets and packing on Aurora pumps. After four hours the deposition was adjourned due to the decedent’s failing health and Aurora’s counsel had not yet had the opportunity to question him. The decedent’s initial deposition was held on July 30, 2008.  The plaintiff’s counsel sent five notices, each one adjourning the deposition to a new date, with the final date being noticed for March 18, 2010. The deposition did not continue on that date and the decedent died on November 3, 2013. Aurora moved for summary judgment, arguing that its inability to question the decedent about his exposure to asbestos from their product made his testimony inadmissible and even if admissible, there was a failure to establish a triable issue of fact as to the alleged exposure in connection with its pumps.

The court found the decedent’s testimony against Aurora admissible, and held: “Here, Aurora waived its right to challenge plaintiffs deposition testimony as a basis to support his claims. Aurora’s counsel had required notice under the CPLR, and was present at the taking of plaintiff’s deposition. Nevertheless, Aurora contends that plaintiff’s deposition is inadmissible because it did not have an opportunity to cross-examine plaintiff with respect to his claims of alleged exposure to its pumps prior to plaintiff’s death. As highlighted earlier, plaintiff died on November 3, 2013, more than five years after the date that he was originally deposed. Between the original date of plaintiff’s deposition, July 30, 2008, and its last adjourn date, March 18, 2010, plaintiff’s deposition was re-noticed five times at the election of plaintiff’s counsel…..However, after March 18, 2010, nothing happened. Aurora concedes that it did not follow-up with plaintiff’s counsel between any of the aforementioned adjourn dates to assert its desire to depose plaintiff. Even if Aurora initially properly relied on plaintiffs counsel’s representations with respect to adjourning plaintiff’s deposition, by late March 2010 when plaintiff’s counsel was no longer sending notices with respect to the deposition, it was incumbent upon Aurora to demand its right to depose plaintiff.”

The court went on to deny Aurora’s motion, and held: “Aurora has failed to meet its burden of establishing a prima facie case here. No affidavit whatsoever was proffered in support of its motion. Nor did Aurora cite to any deposition testimony from a witness that would support a prima facie showing in its favor. Additionally, Aurora does not deny that its pumps contained asbestos during the relevant years of plaintiff’s alleged exposure. In fact, Aurora concedes that plaintiff, at a minimum, identified its pumps as a source of his asbestos exposure in both his interrogatory responses as well as at his deposition.”

Read the full decision here.