FILED: ALBANY COUNTY CLERK 07/13/2023 09:11 AM
`NYSCEF DOC. NO. 239
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`INDEX NO. 905777-22
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`RECEIVED NYSCEF: 07/13/2023
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`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF ALBANY
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`ROBERT L. WATSON, as Executor of the Estate
`of ROBERT C. WATSON, Deceased,
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` Index No. 905777-22
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`Plaintiff,
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` -
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` against -
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`AIR & LIQUID SYSTEMS CORPORATION, as
`Successor by Merger to Buffalo Pumps, Inc., et al.,
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`Defendants.
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`MEMORANDUM OF LAW IN SUPPORT OF THE MOTION FOR
`SUMMARY JUDGMENT OF DEFENDANT Eaton Corporation, as
`successor-in-interest to Eaton Electrical Inc. and Cutler-Hammer, Inc.
`(improperly named as “EATON CORPORATION, Individually and as
`Successor to Yale & Towne Manufacturing”)
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`This product liability action arises out of a claim by Plaintiff, Robert Watson (hereinafter
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`“Plaintiff” or “Mr. Watson”) that plaintiff developed mesothelioma as a result of his alleged
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`exposure to asbestos-containing products. Plaintiff named Defendant as a manufacturer who
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`allegedly made, sold, or distributed the asbestos-containing products to which Plaintiff claims he
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`was exposed. Defendant, Eaton Corporation, as successor-in-interest to Eaton Electrical Inc. and
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`Cutler-Hammer, Inc. (improperly named as “EATON CORPORATION, Individually and as
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`Successor to Yale & Towne Manufacturing”) (hereinafter “Cutler-Hammer” or “Defendant”)
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`seeks summary judgment pursuant to C.P.L.R. §3212(b), on the grounds that no genuine issue of
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`material fact exists and that Plaintiff has failed to demonstrate a prima facie case in product liability
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`against it.
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`FILED: ALBANY COUNTY CLERK 07/13/2023 09:11 AM
`NYSCEF DOC. NO. 239
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`INDEX NO. 905777-22
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`RECEIVED NYSCEF: 07/13/2023
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`STATEMENT OF FACTS
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`Plaintiff initiated this action against numerous defendants by filing a Verified Complaint in
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`the Supreme Court of the State of New York, Albany County, on or about August 1, 2022 alleging
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`that Plaintiff was diagnosed with mesothelioma as a result of his exposure to asbestos. Affirmation
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`of Jodie L. Ryan, Esq., dated July 10, 2023 (“Ryan Affirmation”) ¶ 3, Ex. A. Plaintiff filed a First
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`Amended Complaint on August 25, 2022 to include additional Defendants. Ryan Affirmation, ¶ 4,
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`Ex. B. Thereafter, issue was joined by service of a Verified Answer on behalf of Cutler-Hammer.
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`Ryan Affirmation, ¶ 5, Ex. C. Plaintiff filed a Second Amended Complaint for Wrongful Death
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`to appoint an Estate Representative on January 4, 2023 and a Third Amended Complaint to
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`include additional Defendants on January 27, 2023. Ryan Affirmation, ¶ 6, Ex. D. Plaintiff
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`served Answers to Interrogatories on or about August 25, 2022. Ryan Affirmation, ¶ 7, Ex. E.
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`Plaintiff did not identify Cutler-Hammer or any of its products as a source of his alleged
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`exposure to asbestos in such responses. Id.
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`Plaintiff appeared for a discovery deposition on August 25, 2022, August 26, 2022,
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`August 31, 2022 and September 1, 2022. . His discovery deposition is now concluded. Ryan
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`Affirmation, ¶ 8. Throughout the course of his entire deposition, Plaintiff did not identify Cutler-
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`Hammer or any of its products as a source of his exposure to asbestos.
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`To date, Plaintiff has failed to present any admissible evidence identifying a Cutler-
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`Hammer product as a source of Plaintiff’s alleged exposure to asbestos. Ryan Affirmation, ¶ 9.
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`Accordingly, this Court should grant Cutler-Hammer’s Motion for Summary Judgment and dismiss
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`Plaintiff’s Complaint against Cutler-Hammer as well as all cross-claims, with prejudice.
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`FILED: ALBANY COUNTY CLERK 07/13/2023 09:11 AM
`NYSCEF DOC. NO. 239
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`INDEX NO. 905777-22
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`RECEIVED NYSCEF: 07/13/2023
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`ARGUMENT
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`SUMMARY
`JUDGMENT SHOULD BE GRANTED BECAUSE
`PLAINTIFF HAS FAILED TO ESTABLISH THAT MR. WATSON’S
`ILLNESS WAS CAUSED BY EXPOSURE TO AN ASBESTOS-
`CONTAINING PRODUCT MANUFACTURED OR
`SOLD BY
`DEFENDANT.
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`The New York courts have repeatedly recognized that summary judgment is appropriate
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`where the plaintiff fails to establish a connection between the defendant and the injury-causing
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`product. It is axiomatic that a plaintiff in a products liability action is required to identify the
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`specific defendant whose product caused the alleged injury. See Hymowitz v. Eli Lilly & Co., 73
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`N.Y.2d 487, 504, 541 N.Y.S.2d 941, 945, cert. denied, 493 U.S. 944, 110 S.Ct. 350, 107 L.E.2d 338
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`(1989); Morrisey v. Conservative Gas Corp., 136 N.Y.S.2d 844, 285 A.D. 825, aff’d, 1 N.Y.2d 741,
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`152 N.Y.S.2d 289 (1955); Healy v. Firestone Tire & Rubber Co., 87 N.Y. 2d 596, 601, 640
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`N.Y.S.2d 860, 862 (1996). Additionally, to survive a motion for summary judgment, the plaintiff’s
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`evidence must, at a minimum, create a “reasonable inference” that the plaintiff was exposed to a
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`specific defendant’s product. Cawein v. Flintkote Co., 203 A.D.2d 105, 106, 610 N.Y.S.2d 487,
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`488 (1st Dept. 1994). The mere mention of the name of a particular defendant’s product without
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`evidence “as to location or timing of [the] alleged exposure” does not create that reasonable
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`inference. Scheidel v. AC&S, Inc., 258 A.D.2d 751, 685 N.Y.S.2d 829, 831 (3d Dept. 1999).
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`In this case, Plaintiff has failed to present any admissible evidence identifying a Cutler-
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`Hammer product as a source of his alleged exposure to asbestos. Plaintiff did not identify
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`Cutler-Hammer or any of its products as a source of his exposure to asbestos in the answers to
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`interrogatories. Further, during Plaintiff’s entire deposition, he did not identify Cutler-Hammer
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`or any of its products as a source of his exposure to asbestos. Therefore, to date, Plaintiff has
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`FILED: ALBANY COUNTY CLERK 07/13/2023 09:11 AM
`NYSCEF DOC. NO. 239
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`INDEX NO. 905777-22
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`RECEIVED NYSCEF: 07/13/2023
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`failed to present any admissible evidence identifying a Cutler-Hammer product as a source of his
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`alleged exposure to asbestos.
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`At the summary judgment stage, a plaintiff may not stand on mere allegations of
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`exposure and causation. Rather, he must come forward with some evidence creating a
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`reasonable inference that he was exposed to a specific product and that such exposure resulted in
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`his injury or death. Cawein, supra, 203 A.D.2d at 106, 610 N.Y.S.2d at 488. As set forth in
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`detail herein, Plaintiff has not met their burden and has failed to establish a prima facie case
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`against Cutler-Hammer. Further, Plaintiff has not responded to Cutler-Hammer’s request for a
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`voluntary dismissal, nor have they provided Cutler-Hammer with any response to its request for
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`job site and/or product identification and the time for doing so has passed pursuant to the current
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`First Amended Scheduling Order. Ryan Affirmation, ¶¶ 9-11. Accordingly, summary judgment
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`is warranted and Cutler-Hammer’s Motion for Summary Judgment should be granted.
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`CONCLUSION
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`In light of the above, it is respectfully requested that Defendant Cutler-Hammer be
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`granted an order for summary judgment, dismissing the Complaint and all cross-claims against
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`it. No such relief has previously been sought.
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`Dated: July 13, 2023
`Rochester, New York
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`McELROY, DEUTSCH, MULVANEY
` & CARPENTER, LLP
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`/s/ Jodie L. Ryan_____________
`By:
`Jodie L. Ryan, Esq.
`Attorneys for Defendant
`Eaton Corporation, as successor-in-interest to Eaton
`Electrical Inc. and Cutler-Hammer, Inc. (improperly
`named as “EATON CORPORATION, Individually and as
`Successor to Yale & Towne Manufacturing”)
`820 Bausch & Lomb Place
`Rochester, New York 14604
`Telephone: (585) 623-4290
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