FILED: NEW YORK COUNTY CLERK 09/22/2014 04:54 PM
`FILED: NEW YORK COUNTY CLERK 092014 04:54 P
`NYSCEF DOC. NO. 80
`NYSCEF DOC. NO. 80
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`INDEX NO. 190055/2013
`INDEX NO- 190055/2013
`RECEIVED NYSCEF: O9/22/2014
`RECEIVED NYSCEF: 09/22/2014
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`EXHIBIT G
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`-.34.
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`SUPREME COURT OF THE STATE OF NEW YORK -~ NEW YORK COUNTY
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`Fa><=2l2:22?2919
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`Jun 25 2010 10:59
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`P. 02
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`PRESENT:
`SHERRY ELE;lN'HElTLER
`Justice
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`
`- ERNEST WILLIAMS,
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`Plaintiff,
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`«against»
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`PART ,_'§Q__
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`INDEX NO,; 10718112001
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`MOTION DATE:
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`3116110
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`mofiom SEQ. NO. __oo1
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`.
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`/~‘\.C.&S., Il\lC., of.‘ al., (Goodyear),
`‘Defendants. MOTION CAL. NO.
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`were reed on this motion to/for ,_______§_._t_«I_-_____
`The following papers, numbered 1 to
`Notice of Motion! Order to Show Cause -- Affidavits «~ Exhibits
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`Replying Afficlavits...........
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`Cross-Motion: D Yes
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`Mofion pursuant to CPLR 3212 by defenclants The Goodyear Tire & Rubber Company and Goodyear
`Canada, Inc. (“Gc_>odyear")’for summary judgment dismissing the complaint and all cross claims against‘
`them on the ground that no evidence has been adduced that plain€_:iff, Ernest Williams, now deceaésed
`(“plaintiff’)_, was exposed to aebestos fibers released from an asbestos~contaim'ng Gooclyeax product is
`granted .
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`Plaintiff was diagnosed with asbestosis on March 30, 2000. He died on September 9, 2009 befo1'ol1e-
`oould give deposition testimony. Jessie Pittman, plaintiffs co~worlcer and son-imlaw, testified on
`plaintiff’5 behalf on November 24, 2009. In relevant part, the testimony is tlxm: plaintiff and M2‘. Pittnmn
`worked in the same buildings at the same General Electric facility in Schenectady, New York stauting in
`1976. They initially worked the same Shlfil. Plaintiff was a boiler operator while Mr. Pittman was a
`steam fitter, Mr. Pittman testified that plaintiff never had to cut any gasket matelial as part Ofhis job.
`He further testified that as a boiler operator plaintiff had a lot ofdown time and would visit with Mr.
`Pittman at his station several times a day. Often during Those visits Ivh‘. Pittman himself would be cutting
`gaskets from, among others, Goodyear sheet gasket material. Mr. Pittman testified that he beli'eve<i that
`this activity exposed plaintiff to asbestos fibers contained in Goodyeafs slleet gasket material. However,
`Mr. Pitunaxr also testified that he never saw any packaging in which the Goodyear sheet gasket maceliax
`came, nor was it he who ordered tlloshcet gasket material used. at his workplace. Someone "in the tool
`room would select the material and bring it out to him. Specifically, he testified (Moving Affidavit, Exh.
`B, pp. l74~175)‘.
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`-
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`How do you know any of the gasket material you worked with at General Electric
`contained asbestos?
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`They told me that they were.
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`Who told you‘?
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`Different guys that worked with me.
`=l< =2 s >2
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`_x itlnuecl next
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`‘ NON-FlNAL DISPOSITION
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`21 e
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`REASONS}:
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`MOTIONICASE13RE-SPECTFULLYREFERREDTOJUSTICEFORTHEFOLLOMNG
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`Q.
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`Q.
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`A.
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`FlNAL DISPOSITION
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`Check if appropriate:
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`[10 NOT POST
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`-A.
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`Fa><121222?2919
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`Jun 25 2010 10159
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`F203
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`Ernest Williams v. A.C. «EL 8. Inc;
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`—2~
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`v
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`Index No. 1071810001
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`Q.
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`Would you be able to tell the difference between an asbestos—contain1'ng gasketjust 5)’
`looking at it?
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`.
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`‘A . Sometimes; some’tim_esyo1:cen’t.
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`Mr. Pittman testified further that he did not know that Goodyear mahLlfactu1'ed non --asbestos containllig
`gasket material during the time he worked for General Electric.
`‘
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`Gooclycar does not dispute that Mr. Pittman worked with Goodyear Sheet gasket material in plaintiffs
`presence. Goodyear, however, puts forth evidence that 75% of the sheet gasket material produced by it
`did not contain asbestos.
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`In order. to succeed on this cl aim, it must be established that lplaliixtiff was exposed to asbestos because of .
`Goodyear and that such exposure was ‘a substantial factor in plaintiffls injury (see, Dial v Flimkata
`Company. 204 AD2d 53 [l" Dept 1994]), Based upon M1‘. Pittmaxfs testimony as set forth above,
`- plaintiffs. have failed to provide any concrete evidence, but merely speculation; that the Goodyear sheet
`gasket tnaterial to which plaintiff was exposed coixtaincd ésbcstos and constituted a szrbstantiul factor in
`plaintiff’s injury (of, Pcrclicaro v. 21.0". Smirk Water Pr0a’I9., er al. reaclvyellj, 52 AD3d 300 [ 1*‘ Dept
`2008]).
`In" the oi2'cumstances_ of this case, there is incufficient evidence to make it “reasonably.
`probable... that the defendant was the source‘ of the offehdi11g product.” Henley v Fz'resIo7ze Tire &‘
`Rubber Co.,_ 87 NY2d 596 (1996).
`-
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`Accordingly, Goodyeazfs mL01:io1’1 is granted, and it is hereby
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`ORDERED that defendants The Goodyear Tire & Rubber Co:i1pa.uy’s and Goodyear Canada Ir1c.’s_
`motion for sumn1aryjudg1_net1t dismissing the colnplaim and all cmss claims against thein is ‘granted and
`the colnplaim and all cross‘ claims are dismissed as agaiirst such defendams, without costs, and the Clerlc
`is directed to enter jitdgmeilt accordingly in favor of such defendants; and it is further
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`’
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`ORDERED that the action is severed a_11d continued again§tthe1‘e1nalning defendants; and‘ it is further
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`ORDERED that the captiohhlne ernended to reflect tllo dismissal and that all future papers filed with the
`court bear the amended caption; and it is further
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`-~
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`ORDERED that counsel for the moving parties shall serve copies ofrhls order with notice of entry upon
`the County Clerk (Room 141B.) and the Clerl<_' of the Trial Support Office (Room 158), who are.dire'cted
`to mark the cou1“c’s records to reflect the change in the caption herein,
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`This constitutes the decision and order ofthe count.
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`Dated:
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`e. 6:»/. /0
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`Sherry Klein H itler, J.S.C.~
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