FILED: NEW YORK COUNTY CLERK 09/14/2018 11:35 AM
`NYSCEF DOC. NO. 1116
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`INDEX NO. 190219/2016
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`RECEIVED NYSCEF: 09/14/2018
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`FILED: NEW YORK COUNTY CLERK 09.112018 11:35 AM
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`NYSCEF DOC. NO. 1116
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`INDEX NO~ 190219/2016
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`RaCaIVaD VYSCEF: 09/14/2018 §
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`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF NEW YORK.
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`......I-_----_--_----__-_-_-----_..........._-.................._..._--__-__-__________..-..____________X
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`NEW YORK CITY ASBESTOS LITIGATION
`__________________________________________________________________________________X
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`ANN MARIE IDELL, as Executrix of the Estate of THOMAS
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`MCGLYNN, Deceased,
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`.
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`:
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`Index No.: 190219/2016
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`Plaintiffs,
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`—against-
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`. ORDER WITH
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`: NOTICE OF ENTRY
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`AERCO INTERNATIONAL INC, et a1.
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`Defendants.
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`__________________________________________________________________________________X
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`PLEASE TAKE NOTICE, that the within is a true copy of an Order dated September
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`13, 2018 and entered in the Office of the Clerk of Court on September 14, 2018.
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`Date: New York, New York
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`September 14, 2018
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`SIMMONS HANLY CONROY
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`Attorneys for Plaintiffs
`112 Madison Avenue
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`New York, NY 10016-7416
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`(212) 784—6400
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`
` Laure
`. Nassif, Esq.
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`1 of 5
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`NYSCEF DOC. NO. 1116
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`INDEX NO. 190219/2016
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`RECEIVED NYSCEF: 09/14/2018
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`FILED: NEW YORK COUNTY CLERK 09.112018 11:35 AM
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`NYSCEF DOC. NO. 1116
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`INDEX NO~ 190219/2016
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`RaCaIVaD VYSCEF: 09/14/2018 §
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`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF NEW YORK.
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`......I-_----_--_----__-_-_-----_..........._-.................._..._--__-__-__________..-..____________X
`
`NEW YORK CITY ASBESTOS LITIGATION
`__________________________________________________________________________________X
`
`ANN MARIE IDELL, as Executrix of the Estate of THOMAS
`
`MCGLYNN, Deceased,
`
`.
`
`:
`
`Index No.: 190219/2016
`
`Plaintiffs,
`
`—against-
`
`. ORDER WITH
`
`: NOTICE OF ENTRY
`
`AERCO INTERNATIONAL INC, et a1.
`
`Defendants.
`
`__________________________________________________________________________________X
`
`PLEASE TAKE NOTICE, that the within is a true copy of an Order dated September
`
`13, 2018 and entered in the Office of the Clerk of Court on September 14, 2018.
`
`Date: New York, New York
`
`September 14, 2018
`
`SIMMONS HANLY CONROY
`
`Attorneys for Plaintiffs
`112 Madison Avenue
`
`New York, NY 10016-7416
`
`(212) 784—6400
`
`
` Laure
`. Nassif, Esq.
`
`1 of 5
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`
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`FILED: NEW YORK COUNTY CLERK 09/14/2018 11:35 AM
`NYSCEF DOC. NO. 1116
`
`INDEX NO. 190219/2016
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`RECEIVED NYSCEF: 09/14/2018
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`FILED: NEW YORK COUNTY CLERK 09m2018 11:35 AM
`NYSCEF DOC. NO. 1116
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`INDEX NO~ 190219/2016
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`RaCaIVaD NYSCEF: 09/14/2018
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`Manzanet—Daniels, J.P., Gische, Andrias, Kapnick, Kern, JJ.
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`6936-
`6937—
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`6938
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`In re New York City Asbestos Litigation
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`Index 190219/16
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`Ann Marie Idell, etc.,
`Plaintiff-Respondent,
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`—against-
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`Aerco International,
`Defendants,
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`lnc., et al.,
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`Crane Co., et al.,
`Defendants-Respondents,
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`Jenkins Bros.,
`Defendant-Appellant.
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`Clyde & Co US LLP, New York (Peter J. Dinunzio of counsel), for
`appellant.
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`Simmons Hanly Conroy LLC, New York (James Kramer of counsel), for
`Ann Marie Idell,
`respondent.
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`K&L Gates, LLP, New York (Tara L. Pehush of counsel}, for Crane
`Co., respondent.
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`Marshall Dennehey Warner Coleman & Goggin, P.C., New York (Daniel
`W. Levin of counsel), for Warren Pumps LLC,
`respondent.
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`Orders, Supreme Court, New York County (Martin Shulman, J.),
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`entered August 15, 2017, which granted defendants Crane Co. and
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`Warren Pumps LLC’s respective motions to quash trial subpoenas
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`issued to them, unanimously affirmed, without costs. Order,
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`same
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`court and Justice, entered December 15, 2017, which denied
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`defendant Jenkins Bros.’
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`(defendant) motion pursuant to CPLR 4404
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`2 of 5
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`FILED: NEW YORK COUNTY CLERK 09/14/2018 11:35 AM
`NYSCEF DOC. NO. 1116
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`INDEX NO. 190219/2016
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`RECEIVED NYSCEF: 09/14/2018
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`FILED: NEW YORK COUNTY CLERK 09m2018 11:35 AM
`NYSCEF DOC. NO. 1116
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`INDEX NO' ”0219/2016
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`RaCaIVaD VYSCEF: 09/14/2018
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`to set aside the verdict, and granted plaintiff’s motion pursuant
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`to CPLR 4404 to set aside the verdict to the extent of directing
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`a new trial unless defendant stipulated to an increase in the
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`jury awards of $1.8 million and $l.5 million for past and future
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`pain and suffering, respectively,
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`to $4 million and $2.5 million,
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`respectively, unanimously modified, on the law,
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`the facts and as
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`a matter of discetion,
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`to vacate the additurs for past and future
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`pain and suffering and to direct a new trial on past pain and
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`suffering only, unless, within 30 days of service of a copy of
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`this order with notice of entry, defendant stipulates to increase
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`the award for past pain and suffering to $4 million, and to
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`reinstate the jury’s future pain and suffering award, and
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`otherwise affirmed, without costs.
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`The Supreme Court properly precluded defendant
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`from
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`eliciting testimony from plaintiff’s expert regarding exposure to
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`asbestos in the alleged nonparty tortfeasors’ products because
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`the courtPrOperlyfoundthatdefendantfalledtoestabllsh
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`specific causation against such alleged nonparty tortfeasors (see
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`Matter of NEW York City Asbestos Litigq, 148 AD3d 233, 238—239
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`[1st Dept 2017]).
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`Moreover, contrary to defendant’s contention that General
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`Obligations Law § 15-108 requires that the settled defendants be
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`included on the verdict sheet for apportionment purposes
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`FILED: NEW YORK COUNTY CLERK 09/14/2018 11:35 AM
`NYSCEF DOC. NO. 1116
`
`INDEX NO. 190219/2016
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`RECEIVED NYSCEF: 09/14/2018
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`FILED: NEW YORK COUNTY CLERK 09m2018 11:35 AM
`NYSCEF DOC. NO. 1116
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`INDEX NO~
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`RaCaIVaD VYSCEF: 09/14/2018
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`190219/2016
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`regardless of whether any evidence of their liability was
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`presented, failure to present a prima facie case of their
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`liability “constitutes a waiver of the nonsettling tortfeasor's
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`right to reduction of the verdict based on an apportionment of
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`fault, but not based on the amount of the settlement” (Whalen v
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`Kawasaki Motors Corp., ULS.A., 242 AD2d 919, 920 [4th Dept 1997},
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`mod on other grounds 92 NY2d 288 [1998]).
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`The court properly precluded defendant from introducing
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`evidence of plaintiff’s alleged exposure to asbestos in Scotland
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`before he emigrated to the United States because such evidence
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`was speculative.
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`On the record and arguments before us, it was not error for
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`Supreme Court to quash the subpoena issued to defendant Crane Co.
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`as such subpoena was improperly served. Any error in quashing
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`the subpoena issued to defendant Warren Pumps LLC based on a
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`finding that such subpoena was improperly served was harmless.
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`,WWMWWSupremeAAAAAACourt properly chargedrthe jury on AAAAAAthe issue ofwwwwmmmwmwwmmmwm
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`recklessness. Based on the circumstances of this case, which
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`include plaintiff’s continued exposure to defendant’s valves
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`through 1986,
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`there was sufficient evidence from which a jury
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`could determine that defendant was aware that workers such as
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`plaintiff were at risk from exposure to asbestos (Matter of New
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`York City Asbestos Litig., 89 NY2d 955, 956-957 [1997}).
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`4 of 5
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`FILED: NEW YORK COUNTY CLERK 09/14/2018 11:35 AM
`NYSCEF DOC. NO. 1116
`
`INDEX NO. 190219/2016
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`RECEIVED NYSCEF: 09/14/2018
`
`FILED: NEW YORK COUNTY CLERK 09m2018 11:35 AM
`NYSCEF DOC. NO. 1116
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`INDEX NO~
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`RaCaIVaD VYSCEF:
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`190219/2016
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`09/14/2018
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`Supreme Court properly directed a new trial on damages as to
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`past pain and suffering unless defendant agrees to increase that
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`award to $4 million. HOWever, we find that the jury’s award for
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`future pain and suffering of $1.5 million should be reinstated as
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`such award did not deviate materially from reasonable
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`compensation.
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`THIS CONSTITUTES THE DECISION AND ORDER
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`OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
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`ENTERED:
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`SEPTEMBER l3, 2018
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