Matter of New York City Asbestos Litig. , 154 A.D.3d 441 ( 2017 )

Matter of New York City Asbestos Litig. (2017 NY Slip Op 06982)

Matter of New York City Asbestos Litig.

2017 NY Slip Op 06982

Decided on October 5, 2017

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on October 5, 2017
Acosta, P.J., Renwick, Webber, Oing, Moulton, JJ.

4599 190087/14

[*1]In re New York City Asbestos Litigation

Walter Miller, Plaintiff-Respondent,

v

BMW of North America, LLC, et al., Defendants, Hennessy Industries, Defendant-Appellant.

Simpson Thacher & Bartlett LLP, New York (Michael J. Garvey of counsel), for appellant.

The Karst & Von Oiste Law Firm, New York (Kyle A. Shamberg of counsel), for respondent.

Judgment, Supreme Court, New York County (Cynthia S. Kern, J.), entered September 13, 2016, after a jury trial, awarding plaintiff $5 million for past pain and suffering and $4 million for future pain and suffering, unanimously affirmed, without costs.

In this asbestos litigation arising from plaintiff's use of a grinder manufactured and designed by defendant Hennessy Industries' subsidiary, Ammco, plaintiff's expert testimony was sufficient to establish that plaintiff's use of that grinder on automobile brake linings caused his exposure to asbestos dust in sufficient quantities to cause his mesothelioma (see Sean R. v BMW of N. Am., LLC, 26 NY3d 801, 808 [2016]; cf. Matter of New York City Asbestos Litig. [Juni], 148 AD3d 233, 236 [1st Dept 2017]). Moreover, because the asbestos-laden dust was created by plaintiff's use of defendant's grinder and defendant knew its grinder would be used on asbestos-containing products, defendant had a duty to warn plaintiff of the latent danger arising from the foreseeable use of its product (see e.g. Rastelli v Goodyear Tire & Rubber Co., 79 NY2d 289, 297 [1992]).

We find the damages award, as reduced by the trial court and stipulated to by plaintiff, to be appropriate. Moreover, based on the evidence adduced at trial, the jury properly apportioned 86% of the fault to defendant (see CPLR art 16).

We have considered defendant's remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 5, 2017

CLERK