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Dollas v. W.R. Grace and Company

Appellate Division of the Supreme Court of New York, First Department
Mar 5, 1996
225 A.D.2d 319 (N.Y. App. Div. 1996)

Summary

holding that it is the duty of the trier of fact to weigh the value of the presented evidence and resolve any outstanding conflicts between plaintiff's allegations and the documentary evidence

Summary of this case from RODD v. CITY OF NEW YORK

Opinion

March 5, 1996

Appeal from the Supreme Court, New York County (Helen Freedman, J.).


Judgment of the same court and Justice, entered July 31, 1995, which dismissed the complaint of plaintiff Joseph R. Gargano against defendant Grace, unanimously reversed, on the law, and the complaint reinstated, without costs. The appeal from the order of the same court and Justice, entered June 7, 1995, which granted the motion of defendant Grace for summary judgment, dismissed as subsumed in the appeal from the judgment, without costs.

These appeals involve two of the more than 700 personal injury and wrongful death cases allegedly resulting from exposure to asbestos-containing products at the Brooklyn Navy Yard. Plaintiffs' decedents, who are alleged to have worked on the USS Constellation, succumbed to mesothelioma, "an exceedingly rare disease * * * whose only known cause is exposure to asbestos" ( O'Brien v National Gypsum Co., 944 F.2d 69, 72). At issue is whether plaintiffs presented sufficient evidence to raise a question of fact with respect to decedents' exposure to asbestos from defendant Grace's product, "Monokote", so as to preclude summary judgment ( Hartford Acc. Indem. Co. v Wesolowski, 33 N.Y.2d 169; Di Sabato v Soffes, 9 A.D.2d 297, 300).

In a deposition taken in connection with his own action arising out of asbestos exposure, Walter Robert Bock, a marine machinist, testified that he also worked aboard The Constellation, in part contemporaneously with plaintiffs' decedents. Bock testified that Monokote was used as fireproofing and that spraying of this material was going on "all of the time * * * inside the gun mounts, and other areas of the ship".

In granting Grace's motion for summary judgment against Gargano, Supreme Court stated, "Mr. Bock's testimony that Monokote was on two ships in [Brooklyn] Navy Yard is belied by all the other evidence in the Navy Yard cases that this Court has tried. Gov't. specs. do not include Monokote as an approved product". Two weeks later, the court granted Grace's motion for summary judgment against Dollas "in accordance with decision relating to [Gargano]".

Supreme Court erred in taking judicial notice that Monokote was not used on The Constellation in the face of unequivocal testimony that it was. A court may only apply judicial notice to matters "of common and general knowledge, well established and authoritatively settled, not doubtful or uncertain. The test is whether sufficient notoriety attaches to the fact to make it proper to assume its existence without proof" ( Ecco High Frequency Corp. v Amtorg Trading Corp., 81 N.Y.S.2d 610, 617, affd 274 App. Div. 982).

It was also inappropriate to reject, as being unworthy of belief, the testimony of Walter Robert Bock, offered in opposition to Grace's motion. The deposition testimony of a litigant is sufficient to raise an issue of fact so as to preclude the grant of summary judgment dismissing the complaint ( Harris v City of New York, 147 A.D.2d 186, 189). The assessment of the value of a witnesses' testimony constitutes an issue for resolution by the trier of fact, and any apparent discrepancy between the testimony and the evidence of record goes only to the weight and not the admissibility of the testimony ( Rivera v City of New York, 212 A.D.2d 403, 404). As we recently noted in Cochrane v Owens-Corning Fiberglas Corp. ( 219 A.D.2d 557, 559-560), "Supreme Court's conclusion that plaintiff's allegations are 'not credible' therefore constitutes the impermissible determination of an issue that must await trial (CPLR 3212 [c]; Siegel, N.Y.Prac. § 284, at 413; § 271, at 400 [2d ed]). The function of a court entertaining a motion for summary judgment is one of issue finding, not issue determination ( Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 404; Wiener v. Ga-Ro Die Cutting, 104 A.D.2d 331, 333, affd 65 N.Y.2d 732), and any conflict between plaintiff's allegations and the documentary evidence merely presents an issue of credibility for resolution at trial ( Cohn v. Lionel Corp., 21 N.Y.2d 559, 563; see also, Patrolmen's Benevolent Assn. v. City of New York, 27 N.Y.2d 410, 415 * * *)."

Concur — Sullivan, J.P., Milonas, Ellerin, Rubin and Kupferman, JJ.


Summaries of

Dollas v. W.R. Grace and Company

Appellate Division of the Supreme Court of New York, First Department
Mar 5, 1996
225 A.D.2d 319 (N.Y. App. Div. 1996)

holding that it is the duty of the trier of fact to weigh the value of the presented evidence and resolve any outstanding conflicts between plaintiff's allegations and the documentary evidence

Summary of this case from RODD v. CITY OF NEW YORK

finding plaintiff's deposition testimony sufficient to deny summary judgment despite evidence that contradicts the testimony

Summary of this case from 1234 BROADWAY v. JING WU CHEN

In Dollas, for example, the lower court erred in rejecting, as being unworthy of belief, the testimony of the plaintiff offered in opposition to the defendants summary judgment motion.

Summary of this case from MATTER OF NEW YORK CITY ASBESTOS LITIGATION

In Dollas v. W.R. Grace and Company, 225 A.D.2d 319 (1st Dept., 1996), the First Department stated that "[t]he deposition testimony of a litigant is sufficient to raise an issue of fact so as to preclude the grant of summary judgment dismissing the complaint."

Summary of this case from Lane v. A.W. Chesterton Co.
Case details for

Dollas v. W.R. Grace and Company

Case Details

Full title:JOANNA DOLLAS, Individually and as Administratrix of the Estate of GUS…

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Mar 5, 1996

Citations

225 A.D.2d 319 (N.Y. App. Div. 1996)
639 N.Y.S.2d 323

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