On January 13, 2023 a MEMORANDUM OF LAW IN SUPPORT (Motion #25) - Gardner Denver's Memo of Law in Support of MSJ was filed involving a dispute between Kathleen Spezio, Roger Paul Spezio Sr., and 3M Company, Individually And As Successor To Minnesota Mining And Manufacturing Company, Aii Acquisition Corporation, Llc Individually And As Successor-In-Interest To Athlone Industries, Inc. And Holland Furnace Company, Air & Liquid Systems Corporation As Successor By Merger To Buffalo Pumps, Inc., Alcoa Inc., Individually And As Successor In Interest To Tilo Roofing Co., American Optical Corporation, A.O. Smith Water Products, Armstrong International, Inc., Atwood & Morrill Co., Inc. D B A Weir Valves & Controls Usa Inc., Aurora Pump Company, Avco Corporation, A Textron Lycoming Division, Individually And As Successor To Lycoming Engines F K A Lycoming Manufacturing, Spencer Heater Company, And Spencer Heater Division Of Lycoming, Bw Ip International Co., Formerly Known As Borg Warner Industrial Products Inc., A Former Subsidiary Of And Successor To Borg Warner Corp. And Byron Jackson Pumps, Carrier Corporation, 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, Cleaver-Brooks Company F K A Aqua-Chem, Inc., Columbia Boiler Company Of Pottstown, Compudyne Corporation, Individually And As Successor To York-Shipley, Continental Motors Inc., Continental Motors Inc. F K A Teledyne Continental Motors, Inc., Individually And As Successor To Continental Motors Inc. And Continental Motors Company, Crown Boiler Co., Dean Pump Division, Eaton Aeroquip, Inc. F K A Aeroquip Corporation, Ecr International, Inc., Individually And As Successor To Dunkirk, Dunkirk Boilers And Utica Boilers And Pennco, Inc., Electrolux Home Products, Inc., Individually And As Successor To Tappan And Copes-Vulcan Company, Flowserve Us, Inc., Solely As Successor To Rockwell Manufacturing Company, Edward Valves, Inc., Nordstrom Valves, Inc. And Edward Vogt Valve Company, Fmc Corporation, Individually And As Successor To Northern Pump Company, Coffin And Peerless Pump Company, Gardner Denver, Inc., Individually And As Successor To Nash Engineering Company, Gardner Denver Nash, Llc, Individually And As Successor To Nash Engineering Company, General Electric Company, Goulds Pumps, Inc., Grinnell Corporation, Hoffman New Yorker, Inc., Honeywell International, Inc., Individually And F K A Alliedsignal, Inc., And As Successor-In-Interest To The Bendix Corp., Howden Buffalo, Inc., Individually And As Successor-In-Interest To Fb Sturtevant, The Howden Buffalo Group And Buffalo Fan, International Comfort Products Llc, Individually And As Successor To Heil Heating And Cooling, I.T.T. Industries, Inc., Individually And As Successor To Bell & Gossett, Kohler Co., Lennox Industries, Inc., Individually And As Successor To Lennox Furnace Company And Ducane, Mario & Dibono Plastering Co. Inc., Metropolitan Life Insurance Company, New Yorker Boiler Company, Inc., Parker Hannifin Corporation, Individually And As Successor By Merger To Stratoflex, Inc., Pratt & Whitney Measurement Systems, Inc., Pratt & Whitney Power Systems, Inc., Redco Corp. F K A Crane Co., Rheem Manufacturing Company, Inc., Rockwell Automation, Inc., Individually And As Successor To Allen Bradley, Timken Heating Business And S. Co., Inc. F K A Scaife Company, As Successor In Interest To Rockwell Spring & Axle Companys Timken Silent Automatic Division, Sid Harvey Industries, Inc., Sid Harvey Supply, Inc., Spence Engineering Company, Inc., Spencer Heater A Lycoming Division Of Avco Corporation, Spirax Sarco, Inc., Taco, Inc., Technify Motor Individually And As Successor To Teledyne Continental Motors, Inc. F K A Continental Motors, Inc. And Continental Motors Company, Teledyne Technologies Inc., Individually And As Successor To Teledyne Continental Motors, Inc. F K A Continental Motors, Inc., Continental Motors Company, Texaco, Inc., Union Carbide Corporation, United Technologies Corporation, Individually And As Successor To Pratt & Whitney, Velan Valve Corp., Warren Pumps Llc, Individually And As Successor To The Quimby Pump Company, Weil Mclain, A Division Of Marley-Wylain Company, William Powell Company, York International Corporation, Individually And As Successor To Frick Company, for Torts - Asbestos in the District Court of Ulster County.
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FILED: ULSTER COUNTY CLERK 11/16/2023 04:07 PM INDEX NO. EF2023-99 NYSCEF DOC. NO. 249 RECEIVED NYSCEF: 11/16/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ULSTER __________________________________________________________________Ç ERIC SPEZIO, as Executor of the Estate of ROGER PAUL SPEZIO, SR., deceased, and KATHLEEN Index No.: EF202399 SPEZIO, Individually, EF2023-99 Plaintiffs, Hon. Erin P. Gall -against- 3M COMPANY, et al. Defendants. ----------------_________________________________---------________Ç MEMORANDUM OF LAW IN SUPPORT OF GARDNER DENVER, INC.'S AND GARDNER DENVER NASH, LLC's MOTION FOR SUMMARY JUDGMENT Timothy L. Krippner, Esq. William R. Irwin, Esq. Manning Gross + Massenburg, LLP Attorneys for Defendants Gardner Denver, Inc. and Gardner Denver Nash, LLC 200 Vesey Street, 25th Floor New York, NY 10281 Tel.: (929) 378-4800 1 of 4 FILED: ULSTER COUNTY CLERK 11/16/2023 04:07 PM INDEX NO. EF2023-99 NYSCEF DOC. NO. 249 RECEIVED NYSCEF: 11/16/2023 PRELIMINARY STATEMENT GARDNER DENVER, INC. incorrectly named as "GARDNER DENVER INC., Company" Individually and as Successor to Nash Engineering and "GARDNER DENVER NASH Company" LLC, Individually and as Successor to Nash Engineering (hereinafter "GARDNER DENVER") respectfully submit this Memorandum of Law in support of its Motion for Summary Judgment, seeking dismissal of the Verified Complaint and all cross-claims asserted against it. GARDNER DENVER is entitled to summary judgment because Plaintiff has failed to present evidence that Decedent, Roger Paul Spezio, Sr. ("Spezio"), was exposed to respirable asbestos fibers released from any product manufactured, distributed, supplied, sold or installed by GARDNER DENVER or any alleged predecessors. STATEMENT OF FACTS GARDNER DENVER respectfully refers this Court to the Affirmation of William R. Irwin (the "Irwin Aff."), dated November 16, 2023, and to the contemporaneously filed statement of facts.1 material facts for a statement of the relevant ARGUMENT L SUMMARY JUDGMENT STANDARD Summary judgment is appropriate where the moving defendant has demonstrated that no genuine issues of material fact exist with respect to the necessary elements of the plaintiff's cause of action. Zuckerman v. The City of New York, 49 N.Y.2d 557, 404 N.E.2d 718, 427 N.Y.S.2d 595 (1980); Indig v. Finkelstein, 23 N.Y.2d 728, 244 N.E.2d 61, 296 N.Y.S.2d 370 (1968). Once the moving party has made a prima facie showing that no triable issues of fact exist, the burden shifts to the non-moving party to "show facts sufficient to require a trial of any issue fact[,]" form." of and "make his showing by producing evidentiary proof in admissible 1 All referenced exhibits are annexed to the Irwin Aff. 2 of 4 FILED: ULSTER COUNTY CLERK 11/16/2023 04:07 PM INDEX NO. EF2023-99 NYSCEF DOC. NO. 249 RECEIVED NYSCEF: 11/16/2023 Zuckerman, 49 N.Y.2d at 562. In opposing a motion for summary judgment, "[m]ere conclusions, insufficient[.]" expressions of hope, unsubstantiated allegations or assertions are Id. Summary judgment must be granted as a matter of law where a plaintiff opposing a motion fails to raise a triable issue of fact with respect to a moving defendant's liability. See C.P.L.R. §3212. IL GARDNER DENVER IS ENTITLED TO SUMMARY JUD GMENT BECAUSE PLAINTIFF HAS FAILED TO PRODUCE EVIDENCE DEMONSTRATING THAT DECEDENT SPEZIO WAS EXPOSED TO ASBESTOS FROM A PRODUCT MANUFACTURED, SOLD, SUPPLIED, DISTRIBUTED OR INSTALLED BY GARDNER DENVER OR ANY ALLEGED PREDECESSORS In a products liability action, plaintiff has "the ultimate burden of establishing the identity injuries." of the product which allegedly caused [his] Aetna Cas. & Sur. Co. v. Ashraf 239 A.D.2d 449, 658 N.Y.S.2d 51 (2d Dep't 1997) (citing Hymowitz v. Eli Lilly & Co., 73 N.Y.2d 487, 504 (1989)). While a plaintiff is not required to show the precise cause of his damages, he must at inferred." least show "facts and conditions from which [a] defendant's liability may be reasonably Reid v. Georgia-Pacific Corporation, 212 A.D.2d 462, 622 N.Y.S.2d 946 (1st Dep't 1995). In order to survive summary judgment in an asbestos action, a plaintiff must produce some form of evidence demonstrating that he was exposed to asbestos fibers released from a particular defendant's products. Cawein v. Flintkote Companyv, 203 A.D.2d 105, 106, 610 N.Y.S.2d 487 (1st Dep't 1994). Mere speculation that a particular product was present at a worksite or that a particular product contained asbestos-containing materials is insufficient to create a triable issue of fact. See Perdicaro v. A.O. Smith Water Products, 52 A.D.3d 300, 860 N.Y.S.2d 506 (1st Dep't 2008). Moreover, even where a plaintiff produces evidence that a defendant's asbestos-containing product existed at a plaintiff's worksite during the period of alleged exposure, the plaintiff still bears the 2 3 of 4 FILED: ULSTER COUNTY CLERK 11/16/2023 04:07 PM INDEX NO. EF2023-99 NYSCEF DOC. NO. 249 RECEIVED NYSCEF: 11/16/2023 burden of creating a reasonable inference of actual exposure to asbestos fibers released from that product. See Cawein, 203 A.D.2d at 106. In this case, there are no facts creating an inference that plaintiff ever encountered a product manufactured, distributed, supplied, sold or installed by GARDNER DENVER or any alleged predecessors. Spezio's co-worker did not identify any products manufactured, sold, supplied, distributed or installed by GARDNER DENVER or any alleged predecessors as a source of Decedent's alleged asbestos exposure. See generally Irwin Aff.; see also Exhibit "A". Plaintiff has also not presented any documentary evidence showing that Spezio was exposed to asbestos from a product manufactured, sold, supplied, distributed or installed by GARDNER DENVER or any alleged predecessors. See generally Irwin Aff.; see also Exhibit "A". Because there are no triable issues of fact with respect to plaintiff's claims against GARDNER DENVER, summary judgment should be granted. CONCLUSION For the foregoing reasons, as well as the reasons set forth in the accompanying Affmnation, GARDNER DENVER respectfully requests that the Court grant the within application and dismiss all claims and/or cross-claims asserted against them, together with any further relief as the Court may deem just and proper. Dated: New York, NY November 16, 2023 /s/William R. Irwin Timothy L. Krippner, Esq. William R. Irwin, Esq. Manning Gross + Massenburg, LLP Attorneys for Defendants Gardner Denver, Inc. and Gardner Denver Nash, LLC 200 Vesey Street, 25th Floor New York, NY 10281 Tel.: (929) 378-4800 3 4 of 4