On May 11, 2018 a Motion-Secondary was filed involving a dispute between Raymond M Geraghty, and Airco, Inc., Amchem Products, Inc.,, American Crane & Equipment Corp, Baldwin-Lima-Hamilton Corporation, Blh, Incorporated, Borgwarner Morse Tec Llc, Bucyrus International, Inc.,, Caterpillar Global Mining, Llc, Caterpillar Inc., Individually And As Successor To, Caterpillar Industrial Inc. Individually And, Certainteed Corporation, Clark Equipment Company, Cnh America, As Successor In Interest To, Crane Co.,, Crosby Valve Llc, Cummins, Inc, Deutz Corporation, Fiatallis North America, Inc, Fmc Corporation,, Ford Motor Company, General Electric Company, Honeywell International, Inc.,, Itt Llc.,, Kobelco Construction Machinery U.S.A., Inc, Link-Belt Construction Equipment Company, Marion Power Shovel Company, Owens-Illinois, Inc, Perkins Engines, Inc, Pettibone Michigan, Llc,, Pfizer, Inc., P & H Mining Equipment, A Subsidiary Of, Pneumo Abex Llc, Successor In Interest, Roebuck And Co., Sears, Terex Corporation,, The Manitowoc Company, Inc., Union Carbide Corporation, U.S. Rubber Company, Yorktown Crane Corporation, for Torts - Asbestos in the District Court of New York County.
For full print and download access, please subscribe at https://www.trellis.law/.
Please wait a moment while we load this page.
Preview
FILED: NEW YORK COUNTY CLERK 12/05/2019 02:28 PM INDEX NO. 190149/2018 NYSCEF DOC. NO. 143 RECEIVED NYSCEF: 12/05/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ---------------------------------------------------------X RAYMOND M. GERAGHTY, : Index No.: 190149-18 : Plaintiff, : : AFFIRMATION IN SUPPORT OF -against- : DEFENDANT PNEUMO ABEX : LLC’S MOTION FOR SUMMARY AIRCO, INC., et al., : JUDGMENT : Defendants, : : ---------------------------------------------------------X Alfred J. Sargente, an attorney duly admitted to practice before the courts of the State of New York, affirms the truth of the following under penalties of perjury. 1. I am a partner with the law firm of Hawkins Parnell & Young, LLP, counsel for Defendant, Pneumo Abex LLC, successor in interest to Abex Corporation (hereinafter “Abex”), in the above-entitled action. As such, I am fully familiar with the facts and circumstances of this matter by virtue of the file maintained by my office. 2. This Affirmation, together with the accompanying Memorandum of Law, and exhibits annexed hereto are respectfully submitted in support of the within Motion for Summary Judgment, pursuant to CPLR § 3212, on the grounds that the evidence in this case is insufficient to raise a material issue of fact as to whether the Plaintiff, Raymond M. Geraghty (hereinafter the “Plaintiff” or “Mr. Geraghty”), was exposed to any asbestos fibers from any products manufactured, sold or distributed by Abex. 3. Plaintiff commenced this action by the filing of a Summons and Verified Complaint on May 11, 2018. On August 28, 2018, Plaintiff filed a Supplemental Summons and Amended Verified Complaint. (True and correct copies of Plaintiff’s Summons and Verified Complaint and Supplemental Summons and Amended Verified Complaint are annexed hereto as Exhibit “A.”) 1 of 3 FILED: NEW YORK COUNTY CLERK 12/05/2019 02:28 PM INDEX NO. 190149/2018 NYSCEF DOC. NO. 143 RECEIVED NYSCEF: 12/05/2019 4. Abex joined issue on July 24, 2018 by the filing of its Acknowledgment of Service. (A true and correct copy of Abex’s Acknowledgment of Service is annexed hereto as Exhibit “B.”) 5. On or about July 23, 2018, Plaintiff served its Responses to Defendants’ Fourth Amended Standard Set of Interrogatories and Request for Production of Documents. (A true and correct copy of Plaintiff’s Responses to Defendants’ Fourth Amended Standard Set of Interrogatories and Request for Production of Documents, dated July 23, 2018, is annexed hereto as Exhibit “C.”) Plaintiff’s responses to interrogatories do not identify Abex as a manufacturer, seller or distributor of any products from which Mr. Geraghty was allegedly exposed to asbestos. 6. Mr. Geraghty was deposed in this action on September 5th, 7th and 12th, 2018. (True and correct copies of Plaintiff’s deposition transcripts are annexed hereto as Exhibit “D.”) At this deposition, Mr. Geraghty did not identify Abex as a manufacturer, seller or distributor of any products from which he was allegedly exposed to asbestos. 4. Thus, to date, Plaintiff has failed to proffer any documentary or testimonial evidence tending to show that he was exposed to asbestos fibers from any product manufactured, sold or distributed by Abex. 5. Based on the lack of any evidence identifying Abex as a product from which Plaintiff may have been exposed to asbestos, on June 19, 2019, we requested that Plaintiff’s counsel execute an Unopposed Summary Judgment Motion and Order (“USJM”) dismissing Abex. On September 27, 2019, Plaintiff’s counsel advised that they would not dismiss Abex based on the unsupported claim that Abex supplied brake lining material to manufacturers of other brands of brakes that Mr. Geraghty identified as a source of his asbestos exposure. (A true and correct copy of Plaintiff’s counsel’s September 27, 2019 email is annexed hereto as Exhibit “E.”) 2 of 3 FILED: NEW YORK COUNTY CLERK 12/05/2019 02:28 PM INDEX NO. 190149/2018 NYSCEF DOC. NO. 143 RECEIVED NYSCEF: 12/05/2019 7. As discussed in detail in the accompanying memorandum of law, none of the evidence adduced in this action supports Plaintiff’s claim that he was exposed to asbestos from any Abex product. Thus, Plaintiff cannot prove that he was exposed to asbestos from any Abex product, and any claim to the contrary is based on nothing more than mere conjecture, speculation and hearsay. 6. Accordingly, because Plaintiff has failed to raise a single issue of material fact tending to show that Abex caused or contributed to his illness, Abex is entitled to summary judgment as a matter of law. 7. The Court is respectfully referred to the annexed Memorandum of Law for an analysis of the relevant case law. 8. No prior application for the relief sought herein has been made to this or any other Court. WHEREFORE, it is respectfully requested that this Court grant the within motion in its entirety, together with such other and further relief as it deems just and proper. Dated: December 5, 2019 New York, New York Respectfully Submitted, HAWKINS PARNELL & YOUNG, LLP By: Alfred J. Sargente 600 Lexington Avenue, 8th Floor New York, NY 10022-7678 212.897.9655 Attorneys for Defendant Pneumo Abex LLC, successor in interest to Abex Corporation 3 of 3