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Summary Judgment Granted to Oven Manufacturer on Causation in NYCAL

Court: Supreme Court of New York, New York County

In this action, plaintiff June Savianeso alleges that decedent Michael Savianeso was exposed to asbestos from the products of various defendants.

Decedent passed away without giving deposition testimony. Subsequently, decedent’s brother, James, provided seven days of testimony. As pertinent to this motion, James testified that he worked as a pizza maker at a pizzeria in New Jersey for approximately 30 hours per week from June to August during the summers of 1976 and 1977. James mainly worked during the daytime and closed the pizzeria on only one or two occasions throughout his entire employment.

James testified that cleaning burnt food from the baking stone inside the pizza ovens created dust. He also testified that he would brush dust off his clothes with his hands. Before the end of his shift, he washed his hands and took off his apron to place in the hamper at the pizzeria. Thereafter, James walked two blocks to his family’s summer house. Upon arriving at the family summer home, he would wrestle with decedent, sit next to each other while eating dinner or watching a game, and would hang out together at night.

However, decedent did not live at the family summer home on a full-time basis during those two summers. Instead, decedent lived in the family’s northern New Jersey home while working as a laborer/driver and would be present at the family summer home only when he was not working.

Moreover, James did not return to the family summer home after every shift at the pizzeria. Instead, James would spend time with his friends after his shifts at the pizzeria, while decedent also had friends that he would spend time with at night.  

The defendant moved for summary judgment, arguing that plaintiff did not establish causation from the alleged secondhand exposure to defendant’s pizza ovens. In support, defendant proffered expert evidence opining that the levels of asbestos from decedent’s brother’s work on their pizza ovens would be insufficient to cause decedent’s mesothelioma.

Defendant submitted the affidavit of Dr. Brian Taylor, M.D., who opined that “any secondary exposure to chrysotile asbestos that Decedent sustained from James’ work with and/or around pizza ovens and subsequent ‘normal brotherly contact’ was de minimis and did not cause or contribute to Decedent’s development of pleural malignant mesothelioma.”

Defendant also submitted an Affidavit from Dr. Fionna Mowat, Ph. D. Mowat noted that “an increased risk of mesothelioma in domestic contacts of workers in occupations associated with low levels of chrysotile asbestos, and not amphibole asbestos, have not been documented in the epidemiologic literature.” She also reviewed a report from CIH Delno Malzahn, which concluded that “[t[he phase contrast microscopy] concentrations reported during scraping and cleaning of the pizza oven manufacturer’s pizza oven were well below both current and historic permissible exposure limits.” Mowat opined that “any asbestos exposure that James may have experienced when cleaning the pizza ovens while working at [the pizzeria] for two summers was de minimis.” She further opined that decedent’s even more attenuated alleged secondhand exposure would have also been de minimis.

Plaintiff opposed defendant’s motion and submitted the expert report and supplemental expert report of Dr. David Zhang. Plaintiff did not submit any further evidence.

With regard to the motion for summary judgment, the court first noted 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.”

Further, “summary judgment is rarely granted in negligence actions unless there is no conflict at all in the evidence.” Thereafter, the court explained that Dyer v. Amchem is the appropriate standard for summary judgment in New York. In Dyer, the defendants met their burden “by affirmatively prov[ing], as a matter of law, that there was no causation.” The court also cited the Appellate Division’s recent decision affirming this court’s decision in Sason v. Dykes Lumber Co., Inc. The court set forth that the Appellate Division noted “’the parties’ competing causation evidence constituted the classic ‘battle of the experts’ sufficient to raise a question of fact, and to preclude summary judgment.” 

While noting the Sason decision, the court found that defendant “established its prima facie burden that their product could not have contributed to [Decedent’s] mesothelioma from the alleged exposure.” The court further explained that “[w]hile plaintiff submits a conflicting expert report, such report does not quantify the amount of asbestos that secondhand exposure would have caused.” Finally, the court set forth that “plaintiff has not provided sufficient evidence to establish issues of fact regarding [Decedent’s] secondhand exposure to [Defendant’s] products.”

Thus, the court granted defendant’s motion for summary judgment on causation grounds.

NOTE – Goldberg Segalla represents the Defendant in this matter.

Read the full decision here.