        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

85
CA 16-00947
PRESENT: CARNI, J.P., LINDLEY, NEMOYER, TROUTMAN, AND SCUDDER, JJ.


IN THE MATTER OF THE EIGHTH JUDICIAL DISTRICT
ASBESTOS LITIGATION.
-----------------------------------------------
DONALD J. TERWILLIGER, ADMINISTRATOR OF THE
ESTATE OF DONALD R. TERWILLIGER, DECEASED,
PLAINTIFF-RESPONDENT,

                    V                               MEMORANDUM AND ORDER

BEAZER EAST, INC., THE COMPANY, FORMERLY KNOWN
AS KOPPERS COMPANY, INC., ET AL., DEFENDANTS,
AND HONEYWELL INTERNATIONAL, INC., SUCCESSOR
IN INTEREST TO WILPUTTE COKE OVEN DIVISION OF
ALLIED CHEMICAL CORPORATION, DEFENDANT-APPELLANT.


HARRIS BEACH PLLC, PITTSFORD (A. VINCENT BUZARD OF COUNSEL), FOR
DEFENDANT-APPELLANT.

LIPSITZ & PONTERIO, LLC, BUFFALO (DENNIS P. HARLOW OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (Deborah
A. Chimes, J.), dated March 7, 2016. The order denied the motion of
defendant Honeywell International, Inc., successor in interest to the
Wilputte Coke Oven Division of Allied Chemical Corporation, for
summary judgment dismissing the complaint against it.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs, the motion is granted
and the complaint against defendant Honeywell International, Inc.,
successor in interest to Wilputte Coke Oven Division of Allied
Chemical Corporation, is dismissed.

     Memorandum: In this products liability and negligence action,
plaintiff, as administrator of the estate of Donald R. Terwilliger
(decedent), seeks damages for injuries sustained by decedent as a
result of his exposure to asbestos and coke oven emissions while
employed at the Bethlehem Steel plant (Bethlehem) in Lackawanna, New
York. Defendant Honeywell International, Inc. (Honeywell) was sued as
the successor in interest to Wilputte Coke Oven Division of Allied
Chemical Corporation (Wilputte), the designer and builder of five coke
oven batteries, Nos. 5 through 9, at Bethlehem.

     Honeywell moved for summary judgment seeking dismissal of the
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                                                         CA 16-00947

complaint, which, as relevant on appeal, alleged products liability
theories in the second and fourth causes of action. Initially, we
note that plaintiff conceded in a postargument submission that the
first, third and sixth causes of action should be dismissed, and the
fifth cause of action is not asserted against Honeywell. Thus, the
only two causes of action at issue are the second and fourth causes of
action. We further note at the outset that plaintiff does not contend
that Honeywell failed to meet its initial burden, and neither party
contends that there are issues of fact. Thus, we are presented with a
pure question of law on undisputed facts.

     In support of those parts of its motion for summary judgment
dismissing the second and fourth causes of action, Honeywell contended
that the coke oven batteries are not products for purposes of products
liability theories and that Wilputte’s contract with Bethlehem was one
predominantly for services, not the sale of a product placed into the
stream of commerce. In denying the motion, Supreme Court rejected
those contentions, concluding that the coke ovens are “products”
subject to products liability theories and that the transaction
between Wilputte and Bethlehem was “more like the sale of goods than a
contract for services.” Honeywell appeals, and we reverse.

     We begin our analysis by noting that, in Matter of City of
Lackawanna v State Bd. of Equalization & Assessment of State of N.Y.
(16 NY2d 222, 226-227), the Court of Appeals concluded, when
discussing the nature of these coke oven batteries, that “[t]here is
no doubt that, by common-law standards, these structures would be
deemed real property. Their magnitude, their mode of physical
annexation to the land and the obvious intention of the owner that
such annexation be permanent would, indeed, compel that conclusion.”

     Using the construction of Battery No. 9 as an example,
Honeywell’s submissions established that the construction of a coke
oven battery was a multistage process that took place over
approximately 18 months. The overall construction of the battery
would have taken approximately 1,460,000 hours of labor to complete
over six phases. Phase One involved, among other things, the
construction of the foundation and oven deck slab, requiring
approximately 15,000 hours of labor over a 100-day period, and 14,000
cubic yards of reinforced concrete and 45,000 hours involving
operating engineers and trade persons over a 210-day period. Phase
Two was the brick and structural work phase, and involved the
construction of a quench tower and a 300-foot coal conveyer system,
the latter requiring 3,300 tons of structural steel and 4,400 hours
involving operating engineers and ironworkers over a period of 9 to 12
months. The period of labor for the brick work of Battery No. 9 was
approximately 520,000 hours over a 180-day period. Phases Three
(involving plumbers, steam fitters and electricians), Four (involving
HVAC installation) and Five (involving installation of the quench,
charging and pusher tracks) would have, collectively, required 452,000
hours of labor to complete. Finally, Phase Six, which involved the
construction of offices, a control room, bathrooms and a locker room,
would have taken 60 to 90 days and 25,000 to 30,000 hours of labor to
complete.
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                                                         CA 16-00947

     In light of the foregoing, we conclude that service predominated
the transaction herein and that it was a contract for the rendition of
services, i.e., a work, labor and materials contract, rather than a
contract for the sale of a product (see Hart v Moray Homes, 158 AD2d
890, 891-892; Ben Constr. Corp. v Ventre, 23 AD2d 44, 45; see
generally Perlmutter v Beth David Hosp., 308 NY 100, 104-108, rearg
denied 308 NY 812). We further conclude that a coke oven, installed
as part of the construction of the “great complex of masonry
structures” at Bethlehem (City of Lackawanna, 16 NY2d at 227),
permanently affixed to the real property within a coke oven battery,
does not constitute a “product” for purposes of plaintiff’s products
liability causes of action (see Papp v Rocky Mtn. Oil & Minerals,
Inc., 236 Mont 330, 340-341, 769 P2d 1249, 1256).




Entered:   May 5, 2017                          Frances E. Cafarell
                                                Clerk of the Court
