On November 23, 2021 a
Motion-Secondary
was filed
involving a dispute between
Carmen Catalanotto
Individually And As Executrix Of The Estate Of Vincenzo Catalanotto,
and
3M Company, F K A Minnesota Mining & Manufacturing Co.,
Asbeka Industries Of New York,
Awmco, Llc,
Bari Restaurant And Pizzeria Equipment Corp.,
Burnham Llc,
Crane Co.,
David Fabricators Of New York, Inc.,
Ecr International Inc., F K A Dunkirk Radiator Corp., And As Successor By Merger To The Utica Companies, Inc.,
Elliott Company,
Foster Wheeler Energy Corporation,
General Electric Company,
Goulds Pumps Llc F K A Goulds Pumps Incorporated,
Grinnell Llc,
G.S. Blodgett Corporation,
Honeywell International Inc., F K A Alliedsignal, Inc., As Successor-In-Interest To The Bendix Corporation,
Imo Industries, Inc.,
Itt Llc,
Mario & Dibono Plastering Co., Inc.;,
Morse Tec Llc, F K A Borgwarner Morse Tec Llc, As Successor-By-Merger To Borg-Warner Corporation,
Qcp, Inc. F K A Bakers Pride Oven Company, Inc.,
Tishman Realty & Construction Co., Inc., N K A Ttv Realty Holdings, Inc.,
Union Carbide Corporation,
Viacomcbs Inc., F K A Cbs Corporation, A Delaware Corporation, F K A Viacom Inc., Successor By Merger To Cbs Corporation, A Pennsylvania Corporation, F K A Westinghouse Electric Corporation,
for Torts - Asbestos
in the District Court of New York County.
Preview
FILED: NEW YORK COUNTY CLERK 11/02/2022 10:35 AM INDEX NO. 190247/2021
NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 11/02/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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CARMEN CATALANOTTO, Individually and as Index No. 190247/2021
Executrix of the Estate of VINCENT CATALANOTTO,
Plaintiff,
-against-
3M COMPANY, f/k/a MINNESOTA MINING &
MANUFACTURING CO., et. al.,
Defendants.
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MEMORANDUM OF LAW IN SUPPORT OF
DEFENDANT AWMCO’S
MOTION FOR SUMMARY JUDGMENT
NICOLETTI SPINNER RYAN GULINO PINTER LLP
Attorneys for Defendant
AWMCO Acquisition, LLC d/b/a AWMCO, LLC
i/s/h/a AMWCO, LLC
555 Fifth Avenue, 8th Floor
New York, New York 10017
(212) 730-7750
File No. 80340.00003
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PRELIMINARY STATEMENT
Defendant AWMCO Acquisition, LLC d/b/a AWMCO, LLC i/s/h/a AMWCO, LLC
(“AWMCO”) submits this Memorandum of Law in support of its motion pursuant to CPLR §3212
seeking summary judgment, dismissing Plaintiff’s claims and all cross-claims asserted against this
defendant.
Summary judgment should be granted since Plaintiff has failed to establish that decedent
Vincent Catalanotto was exposed to any asbestos-containing products manufactured, distributed or
sold by AWMCO or any asbestos-containing products for which AWMCO may be held
responsible.
STATEMENT OF FACTS
As set forth in greater length in the supporting affirmation, this is an action for wrongful
death and personal injuries allegedly sustained by decedent Vincent Catalanotto (“Catalanotto”).
Catalanotto was diagnosed with lung cancer in May 2019 and died on May 16, 2019. Plaintiff
Carmen Catalanotto (“Plaintiff”) has alleged that Catalanotto was exposed to asbestos during the
course of his work as a laborer at the World Trade Center in 1971 and while operating and
cleaning pizza ovens at California Pizza in Valley Stream, New York between 1972 and 1982
and at Golden Crust Pizza in Brewster, New York between 1982 and 1984.
Plaintiff has failed to produce any evidence, in response to repeated requests since the
service of the amended complaint upon AWMCO, to show that the decedent was exposed to any
asbestos-containing product manufactured, distributed or sold by AWMCO or any asbestos-
containing products for which AWMCO may be held responsible.
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Leonard P. Farrell, the President of AWMCO, has attested to the fact that AWMCO has
only been in existence since 2017, when the company purchased assets of AWMCO, Inc., pursuant
to an Asset Purchase Agreement entered into on November 17, 2017. Farrell attests to the fact that
AWMCO, Inc., the company whose assets were purchased by AWMCO, did not begin selling
baking stones until the 1990s and that the baking stones sold by AWMCO, Inc. were comprised of a
material called Fibrament, which never contained asbestos. In any event, pursuant to Article
2.2(b)(iv) of the Asset Purchase Agreement, product-related liabilities were expressly excluded
from the assumed liabilities of purchaser AWMCO.
The affidavit of Leonard P. Farrell makes it clear that AWMCO never manufactured,
distributed or sold any asbestos-containing products, that the company from which AWMCO
purchased assets did not even begin selling baking stones until the 1990s, long after Catalanotto’s
last exposure, and that those baking stones did not even contain asbestos. Finally, as Farrell states
in his affidavit and as is confirmed by the terms of the Asset Purchase Agreement, product-related
liabilities were expressly excluded from the assumed liabilities of purchaser AWMCO.
As plaintiff has not produced evidence of exposure to any asbestos-containing products
manufactured, distributed or sold by AWMCO and as AWMCO has attested to the fact that it never
manufactured, distributed or sold any asbestos-containing products or assumed the liabilities of any
company that did manufacture, distribute or sell asbestos-containing products, defendant AWMCO
has established its entitlement to dismissal of both plaintiff’s claims against it and all cross-claims
asserted in this action.
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ARGUMENT
POINT I
STANDARD FOR SUMMARY JUDGMENT
Under New York Law, summary judgment “shall be granted if,upon all the papers and
proof submitted, the cause of action or defense shall be established sufficiently to warrant the court
as a matter of law in directing judgment in favor of any party.” CPLR 3212(b). It is well-settled law
in the State of New York that a motion for summary judgment shall be granted where the moving
party establishes that there exist no genuine triable issues of law or fact. Andre v. Pomeroy, 35
N.Y.2d 362, 320 N.E.2d 853, 362 N.Y.S.2d 131 (1974).
The Court of Appeals has repeatedly held that in order to defeat a motion for summary
judgment, the opposing party must make a showing of evidentiary proof in admissible form by
establishing the facts sufficient to require a trial of any issue of fact. See Sutton v. East River
Savings Bank, 83 A.D.2d 801, 441 N.Y.S.2d 819 (1st Dept., 1981); Friends of Animals, Inc. v.
Associated Fur Manufacturers, 46 N.Y.2d 1065, 390 N.E.2d 298, 416 N.Y.S.2d 790 (1979);
Zuckerman v. City of New York, 49 N.Y.2d 557, 404 N.E.2d 718, 427 N.Y.S.2d 595 (1980).
The function of the Court is not to "[f]erret out speculative issues to get the case to
the jury where the trial may disclose something the pre-trial proceedings have not." See Andre v.
Pomeroy, supra at 362. Conclusory assertions, even if believable, are not enough. See Hendries,
Inc. v. American Express Co., et al., 35 A.D.2d 412, 316 N.Y.S.2d 554 (1st Dep’t 1970). (“[o]ne
opposing a motion for summary judgment must produce evidentiary proof in admissible form
sufficient to require a trial of material question of fact on which he rests his claim … mere
conclusions, expressions of hope or unsubstantiated allegations are insufficient.” Amatulli v.
Delhi Constr. Corp., 77 N.Y.2d 525, 533, 571 N.E.2d 645, 649, 569 N.Y.S.2d 337, 341 (1991)
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(quoting Zuckerman v. City of New York, 49 N.Y.2d 557, 404 N.E.2d 718, 427 N.Y.S.2d 595
(1980)).
POINT II
PLAINTIFF HAS NOT ESTABLISHED THAT CATALANOTTO WAS EXPOSED TO
ASBESTOS-CONTAINING PRODUCTS FOR WHICH AWMCO WAS RESPONSIBLE
In Cawein v. Flinkkote Company, 203 AD2d 105 (1st Dept. 1994), the court made it clear
that in order to defeat a defendant’s summary judgment motion, the plaintiff must allege facts
and conditions from which the defendant’s liability may be reasonably inferred, in that the
plaintiff worked in the vicinity where the defendant’s asbestos-containing products were used
and that the plaintiff was exposed to asbestos fibers from the defendant’s product.
In Diel v. Flintkote Company, 204 AD2d 53 (1st Dept. 1994), the court held that in order
to succeed on a claim for injury as a result of asbestos-containing products, the plaintiff must
establish that he was exposed to a particular defendant’s products and that it is more likely than
not that this exposure was a substantial factor in his injury.
Here, plaintiff has not provided any evidence that decedent Catalanotto was exposed to
any asbestos-containing products for which AWMCO is responsible. Further, the affidavit of
Leonard P. Farrell, the President of AWMCO, establishes that AWMCO did not manufacture,
distribute or sell any asbestos-containing products, that AWMCO has no knowledge of the
manufacture, distribution or sale of any asbestos-containing products of AWMCO, Inc., prior to
the purchase of certain assets of AWMCO, Inc. on November 17, 2017, and that AWMCO did
not assume liability for any personal injury claims related to AWMCO, Inc. products sold prior
to November 17, 2017.
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CONCLUSION
For the reasons set forth above, it is respectfully requested that defendant AWMCO’s
motion for summary dismissal of plaintiff’s claims, and all cross-claims asserted against
AWMCO, be granted in its entirety.
Dated: New York, New York
November 1, 2022
Respectfully submitted,
By:
Laura M. Mattera, Esq.
NICOLETTI SPINNER RYAN GULINO PINTER LLP
Attorneys for Defendant
FENDER MUSICAL INSTRUMENTS CORPORATION
555 Fifth Avenue, 8th Floor
New York, New York 10017
(212) 730-7750
File No. 80340.00003
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Preview
FILED: NEW YORK COUNTY CLERK 11/02/2022 10:35 AM INDEX NO. 190247/2021 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 11/02/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ---------------------------------------------------------------------X CARMEN CATALANOTTO, Individually and as Index No. 190247/2021 Executrix of the Estate of VINCENT CATALANOTTO, Plaintiff, -against- 3M COMPANY, f/k/a MINNESOTA MINING & MANUFACTURING CO., et. al., Defendants. ---------------------------------------------------------------------X MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT AWMCO’S MOTION FOR SUMMARY JUDGMENT NICOLETTI SPINNER RYAN GULINO PINTER LLP Attorneys for Defendant AWMCO Acquisition, LLC d/b/a AWMCO, LLC i/s/h/a AMWCO, LLC 555 Fifth Avenue, 8th Floor New York, New York 10017 (212) 730-7750 File No. 80340.00003 1 1 of 6 FILED: NEW YORK COUNTY CLERK 11/02/2022 10:35 AM INDEX NO. 190247/2021 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 11/02/2022 PRELIMINARY STATEMENT Defendant AWMCO Acquisition, LLC d/b/a AWMCO, LLC i/s/h/a AMWCO, LLC (“AWMCO”) submits this Memorandum of Law in support of its motion pursuant to CPLR §3212 seeking summary judgment, dismissing Plaintiff’s claims and all cross-claims asserted against this defendant. Summary judgment should be granted since Plaintiff has failed to establish that decedent Vincent Catalanotto was exposed to any asbestos-containing products manufactured, distributed or sold by AWMCO or any asbestos-containing products for which AWMCO may be held responsible. STATEMENT OF FACTS As set forth in greater length in the supporting affirmation, this is an action for wrongful death and personal injuries allegedly sustained by decedent Vincent Catalanotto (“Catalanotto”). Catalanotto was diagnosed with lung cancer in May 2019 and died on May 16, 2019. Plaintiff Carmen Catalanotto (“Plaintiff”) has alleged that Catalanotto was exposed to asbestos during the course of his work as a laborer at the World Trade Center in 1971 and while operating and cleaning pizza ovens at California Pizza in Valley Stream, New York between 1972 and 1982 and at Golden Crust Pizza in Brewster, New York between 1982 and 1984. Plaintiff has failed to produce any evidence, in response to repeated requests since the service of the amended complaint upon AWMCO, to show that the decedent was exposed to any asbestos-containing product manufactured, distributed or sold by AWMCO or any asbestos- containing products for which AWMCO may be held responsible. 2 2 of 6 FILED: NEW YORK COUNTY CLERK 11/02/2022 10:35 AM INDEX NO. 190247/2021 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 11/02/2022 Leonard P. Farrell, the President of AWMCO, has attested to the fact that AWMCO has only been in existence since 2017, when the company purchased assets of AWMCO, Inc., pursuant to an Asset Purchase Agreement entered into on November 17, 2017. Farrell attests to the fact that AWMCO, Inc., the company whose assets were purchased by AWMCO, did not begin selling baking stones until the 1990s and that the baking stones sold by AWMCO, Inc. were comprised of a material called Fibrament, which never contained asbestos. In any event, pursuant to Article 2.2(b)(iv) of the Asset Purchase Agreement, product-related liabilities were expressly excluded from the assumed liabilities of purchaser AWMCO. The affidavit of Leonard P. Farrell makes it clear that AWMCO never manufactured, distributed or sold any asbestos-containing products, that the company from which AWMCO purchased assets did not even begin selling baking stones until the 1990s, long after Catalanotto’s last exposure, and that those baking stones did not even contain asbestos. Finally, as Farrell states in his affidavit and as is confirmed by the terms of the Asset Purchase Agreement, product-related liabilities were expressly excluded from the assumed liabilities of purchaser AWMCO. As plaintiff has not produced evidence of exposure to any asbestos-containing products manufactured, distributed or sold by AWMCO and as AWMCO has attested to the fact that it never manufactured, distributed or sold any asbestos-containing products or assumed the liabilities of any company that did manufacture, distribute or sell asbestos-containing products, defendant AWMCO has established its entitlement to dismissal of both plaintiff’s claims against it and all cross-claims asserted in this action. 3 3 of 6 FILED: NEW YORK COUNTY CLERK 11/02/2022 10:35 AM INDEX NO. 190247/2021 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 11/02/2022 ARGUMENT POINT I STANDARD FOR SUMMARY JUDGMENT Under New York Law, summary judgment “shall be granted if,upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party.” CPLR 3212(b). It is well-settled law in the State of New York that a motion for summary judgment shall be granted where the moving party establishes that there exist no genuine triable issues of law or fact. Andre v. Pomeroy, 35 N.Y.2d 362, 320 N.E.2d 853, 362 N.Y.S.2d 131 (1974). The Court of Appeals has repeatedly held that in order to defeat a motion for summary judgment, the opposing party must make a showing of evidentiary proof in admissible form by establishing the facts sufficient to require a trial of any issue of fact. See Sutton v. East River Savings Bank, 83 A.D.2d 801, 441 N.Y.S.2d 819 (1st Dept., 1981); Friends of Animals, Inc. v. Associated Fur Manufacturers, 46 N.Y.2d 1065, 390 N.E.2d 298, 416 N.Y.S.2d 790 (1979); Zuckerman v. City of New York, 49 N.Y.2d 557, 404 N.E.2d 718, 427 N.Y.S.2d 595 (1980). The function of the Court is not to "[f]erret out speculative issues to get the case to the jury where the trial may disclose something the pre-trial proceedings have not." See Andre v. Pomeroy, supra at 362. Conclusory assertions, even if believable, are not enough. See Hendries, Inc. v. American Express Co., et al., 35 A.D.2d 412, 316 N.Y.S.2d 554 (1st Dep’t 1970). (“[o]ne opposing a motion for summary judgment must produce evidentiary proof in admissible form sufficient to require a trial of material question of fact on which he rests his claim … mere conclusions, expressions of hope or unsubstantiated allegations are insufficient.” Amatulli v. Delhi Constr. Corp., 77 N.Y.2d 525, 533, 571 N.E.2d 645, 649, 569 N.Y.S.2d 337, 341 (1991) 4 4 of 6 FILED: NEW YORK COUNTY CLERK 11/02/2022 10:35 AM INDEX NO. 190247/2021 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 11/02/2022 (quoting Zuckerman v. City of New York, 49 N.Y.2d 557, 404 N.E.2d 718, 427 N.Y.S.2d 595 (1980)). POINT II PLAINTIFF HAS NOT ESTABLISHED THAT CATALANOTTO WAS EXPOSED TO ASBESTOS-CONTAINING PRODUCTS FOR WHICH AWMCO WAS RESPONSIBLE In Cawein v. Flinkkote Company, 203 AD2d 105 (1st Dept. 1994), the court made it clear that in order to defeat a defendant’s summary judgment motion, the plaintiff must allege facts and conditions from which the defendant’s liability may be reasonably inferred, in that the plaintiff worked in the vicinity where the defendant’s asbestos-containing products were used and that the plaintiff was exposed to asbestos fibers from the defendant’s product. In Diel v. Flintkote Company, 204 AD2d 53 (1st Dept. 1994), the court held that in order to succeed on a claim for injury as a result of asbestos-containing products, the plaintiff must establish that he was exposed to a particular defendant’s products and that it is more likely than not that this exposure was a substantial factor in his injury. Here, plaintiff has not provided any evidence that decedent Catalanotto was exposed to any asbestos-containing products for which AWMCO is responsible. Further, the affidavit of Leonard P. Farrell, the President of AWMCO, establishes that AWMCO did not manufacture, distribute or sell any asbestos-containing products, that AWMCO has no knowledge of the manufacture, distribution or sale of any asbestos-containing products of AWMCO, Inc., prior to the purchase of certain assets of AWMCO, Inc. on November 17, 2017, and that AWMCO did not assume liability for any personal injury claims related to AWMCO, Inc. products sold prior to November 17, 2017. 5 5 of 6 FILED: NEW YORK COUNTY CLERK 11/02/2022 10:35 AM INDEX NO. 190247/2021 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 11/02/2022 CONCLUSION For the reasons set forth above, it is respectfully requested that defendant AWMCO’s motion for summary dismissal of plaintiff’s claims, and all cross-claims asserted against AWMCO, be granted in its entirety. Dated: New York, New York November 1, 2022 Respectfully submitted, By: Laura M. Mattera, Esq. NICOLETTI SPINNER RYAN GULINO PINTER LLP Attorneys for Defendant FENDER MUSICAL INSTRUMENTS CORPORATION 555 Fifth Avenue, 8th Floor New York, New York 10017 (212) 730-7750 File No. 80340.00003 6 6 of 6