Katechis v. Allied Bldg. Prods. Corp.

Decision Date10 June 2022
Docket NumberIndex No. 190330/2019,Motion Seq. No. 001
Citation2022 NY Slip Op 31840 (U)
PartiesAGATHI KATECHIS, Plaintiff, v. ALLIED BUILDING PRODUCTS CORP., AMERICAN BILTRITE, INC.,BIRD INCORPORATED, BURNHAM CORPORATION, CERTAIN-TEED CORPORATION, CRANE CO., DAP, INC.DOMCO PRODUCTS TEXAS, INO.KAISER GYPSUM COMPANY, INO.KAMCO SUPPLY CORP., KOHLER CO., METROPOLITAN LIFE INSURANCE CO., SHERWIN-WILLIAMS COMPANY (THE), UNION CARBIDE CORPORATION, WEIL MCLAIN, BUILDERS FIRSTSOURCE, INC.,INDIVIDUALLY AND AS SUCCESSOR IN INTEREST TO, AND/OR PARENT COMPANY AND ALTER-EGO OF, THE STROBER ORGANIZATION, INC.,STROBER BUILDING SUPPLY, THE CONTRACTOR YARD, AND U.S. COMPONENTS, CONTRACTOR YARD (THE), INDIVIDUALLY AND AS SUCCESSOR IN INTEREST TO THE STROBER ORGANIZATION, INC.,DYKES LUMBER COMPANY, INC.PROBUILD HOLDINGS, INC.INDIVIDUALLY AND AS SUCCESSOR IN INTEREST TO AND/OR PARENT COMPANY AND ALTER-EGO OF, THE STROBER ORGANIZATION, INO.STROBER BUILDING SUPPLY, THE CONTRACTOR YARD, AND U.S. COMPONENTS, PROBUILD HOLDINGS LLCJNDIVIDUALLY AND AS SUCCESSOR IN INTEREST TO AND/OR PARENT COMPANY AND ALTER-EGO OF, THE STROBER ORGANIZATION, INO.STROBER BUILDING SUPPLY, THE CONTRACTOR YARD, AND U.S. COMPONENTS, STROBER BUILDING SUPPLY, INDIVIDUALLY AND AS SUCCESSOR IN INTEREST TO THE STROBER ORGANIZATION, INC.,STROBER ORGANIZATION, INC. (THE), U.S. COMPONENTS, INC.INDIVIDUALLY AND AS SUCCESSOR IN INTEREST TO THE STROBER ORGANIZATION, INC., Defendant. DYKES LUMBER COMPANY, INC. Third-Party Plaintiff, v. MANVILLE PERSONAL INJURY SETTLEMENT TRUST Defendant.
CourtNew York Supreme Court

2022 NY Slip Op 31840(U)

AGATHI KATECHIS, Plaintiff,
v.

ALLIED BUILDING PRODUCTS CORP., AMERICAN BILTRITE, INC.,BIRD INCORPORATED, BURNHAM CORPORATION, CERTAIN-TEED CORPORATION, CRANE CO., DAP, INC.DOMCO PRODUCTS TEXAS, INO.KAISER GYPSUM COMPANY, INO.KAMCO SUPPLY CORP., KOHLER CO., METROPOLITAN LIFE INSURANCE CO., SHERWIN-WILLIAMS COMPANY (THE), UNION CARBIDE CORPORATION, WEIL MCLAIN, BUILDERS FIRSTSOURCE, INC.,INDIVIDUALLY AND AS SUCCESSOR IN INTEREST TO, AND/OR PARENT COMPANY AND ALTER-EGO OF, THE STROBER ORGANIZATION, INC.,STROBER BUILDING SUPPLY, THE CONTRACTOR YARD, AND U.S. COMPONENTS, CONTRACTOR YARD (THE), INDIVIDUALLY AND AS SUCCESSOR IN INTEREST TO THE STROBER ORGANIZATION, INC.,DYKES LUMBER COMPANY, INC.PROBUILD HOLDINGS, INC.INDIVIDUALLY AND AS SUCCESSOR IN INTEREST TO AND/OR PARENT COMPANY AND ALTER-EGO OF, THE STROBER ORGANIZATION, INO.STROBER BUILDING SUPPLY, THE CONTRACTOR YARD, AND U.S. COMPONENTS, PROBUILD HOLDINGS LLCJNDIVIDUALLY AND AS SUCCESSOR IN INTEREST TO AND/OR PARENT COMPANY AND ALTER-EGO OF, THE STROBER ORGANIZATION, INO.STROBER BUILDING SUPPLY, THE CONTRACTOR YARD, AND U.S. COMPONENTS, STROBER BUILDING SUPPLY, INDIVIDUALLY AND AS SUCCESSOR IN INTEREST TO THE STROBER ORGANIZATION, INC.,STROBER ORGANIZATION, INC. (THE), U.S. COMPONENTS, INC.INDIVIDUALLY AND AS SUCCESSOR IN INTEREST TO THE STROBER ORGANIZATION, INC., Defendant.

DYKES LUMBER COMPANY, INC. Third-Party Plaintiff,
v.

MANVILLE PERSONAL INJURY SETTLEMENT TRUST Defendant.

Index No. 190330/2019, Motion Seq. No. 001

Supreme Court, New York County

June 10, 2022


Unpublished Opinion

MOTION DATE 12/09/2021

DECISION+ORDER ON MOTION

ADAM SILVERA, JUSTICE

1

The following e-filed documents, listed by NYSCEF document number (Motion 001) 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 110, 142 were read on this motion to/for SUMMARY JUDGMENT(AFTER JOINDER)

Upon the foregoing documents, it is hereby ordered that Defendant Dykes Lumber Company Inc.'s, (hereinafter referred to as Dykes) motion for summary judgment is denied for the reasons set forth below.

Plaintiff Agathi Katechis individually and as executrix of the estate of Anastasios E. Katechis (decedent) commenced this action claiming personal injuries against Dykes due to alleged exposure to asbestos. Plaintiff claims decedent was exposed to asbestos while working for Mamais Construction (hereinafter referred to as Mamais) between 1967 and 1971, as a painter. According to decedent's expert reports, it was concluded with reasonable degree of medical certainty that decedent has a pleural malignant mesothelioma. See Notice of Motion, Exh. H, Report of David Y. Zhang, MD, dated August 5, 2020. The alleged asbestos exposure resulted from a pre-mixed joint compound from the brands U.S. Gypsum, Kaiser Gypsum, Gold Bond, and Georgia-Pacific. Furthermore, it is purported that the pre-mixed joint compound was purchased by Mamais from Dykes. During decedent's deposition, he described his work duties as painting with joint compounds and working around other people who used joint compounds. Decedent further testified that when both he and his fellow colleagues sanded the joint compounds, "[i]t was like a three-time process, so the first time we would put it on we'd let it dry. We would have to scrape it off. The dust would come out. The second time we would do the same thing and then we would have to scrape it off, put it back on again. And then the third time

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the same way. We did this three times. The fourth time is when we would go in and paint it." See Affirmation In Opposition To Defendant Dykes Lumber Company, Inc.'s Motion For Summary Judgment, Exh. A, Depo. Tr. Of Anastasios Katechis, p. 36, In. 19 - p. 37, In. 2. Plaintiff contends that decedent's exposure was chronic and fierce during his employment at Mamais. Conversely, Dykes contends that the exposure was de minimus. Dykes moves for summary judgment contending that proximate causation cannot be proven. Plaintiff opposes, and no reply papers were filed.

Pursuant to CPLR 3212(b), a motion for summary judgment, "shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established...

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