On July 11, 2012, Justice Sherry Heitler, the presiding judge of the New York City Asbestos Litigation (“NYCAL”) granted M&K client Tishman Liquidating Corporation’s motion for summary judgment in the Szamatulski matter. The case involved a 79 year old mesothelioma claimant represented by the law firm of Early & Strauss. Tishman was represented by M&K counsel Kerryann Cook and Nicole Wesselmann.
Plaintiff served in the U.S. Navy as a fireman and later worked as a union plumber. For the purposes of the motion, plaintiff worked during the new construction of numerous powerhouses and commercial sites in the New York City area. Plaintiff claimed, among other things, that he was exposed to asbestos from the work of pipefitters applying asbestos containing materials to pipes in his vicinity. Plaintiff identified the entity that was performing this work. In addition, plaintiff identified the entity he believed was the general contractor for a few specifics sites.
In this regard, during his deposition, plaintiff identified “Tishman and/or Turner” as the general contractor of a building in the Upper East Side neighborhood of New York City. Plaintiff alleged that Tishman Liquidating was the successor to Tishman Realty & Construction. Further, plaintiff alleged Tishman Realty & Construction, and not Turner, was the general contractor at the site in question. Plaintiffs’ counsel relied upon documents that established Tishman Realty & Construction was the general contractor during new construction of the building at issue.
In granting Tishman Liquidating’s motion, the court reasoned that even if “Tishman” was the general contractor on the site, plaintiffs’ did not carry its burden, at the summary judgment stage, to establish any dispute existed whether Tishman “supervised or controlled” the activity that gave rise to plaintiff’s exposure to asbestos. The court went on to reaffirm prior case law that held “the mere presence of a representative of a general contract…does not render the contractor liable.” This finding is in line with the case law that we have developed over the years for our various contractor related defendants in the NYCAL. See Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 505 (1993); Hughes v. Tishman Constr. Corp., 40 AD3d 305, 206 (1st Dep’t. 2007); see also Matthews v A.C. & S, Index No. 118368/01 (Sup. Ct NY Cty. Dec. 6, 2002, Freedman, J.). The court was silent with respect to any successor related issues.