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

651
CA 14-02303
PRESENT: SCUDDER, P.J., SMITH, CARNI, LINDLEY, AND DEJOSEPH, JJ.


IN THE MATTER OF THE EIGHTH JUDICIAL DISTRICT
ASBESTOS LITIGATION.
-----------------------------------------------
BETH ANN PIENTA, AS SUCCESSOR EXECUTRIX OF THE
ESTATE OF LEE HOLDSWORTH, DECEASED, AND AS
EXECUTRIX OF THE ESTATE OF CAROL A. HOLDSWORTH,
DECEASED, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

A.W. CHESTERTON COMPANY, ET AL., DEFENDANTS,
AND CRANE CO., DEFENDANT-APPELLANT.


K&L GATES LLP, NEW YORK CITY (MICHAEL J. ROSS, OF THE PENNSYLVANIA
BAR, ADMITTED PRO HAC VICE, OF COUNSEL), FOR DEFENDANT-APPELLANT.

LIPSITZ & PONTERIO, LLC, BUFFALO (JON NED LIPSITZ OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (John P.
Lane, J.H.O.), entered April 15, 2013. The order, insofar as appealed
from, denied the motion of defendant Crane Co. for summary judgment.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: In this products liability action, plaintiff, on
behalf of Lee Holdsworth (decedent) and his deceased wife, seeks
damages for injuries sustained by decedent as a result of his exposure
to asbestos products used in conjunction with valves manufactured by
Crane Co. (defendant). The valves were part of a system that
transported steam throughout the industrial plant where decedent was
employed from 1956 to 1982. The complaint alleges that defendant
failed to warn decedent of the risk of asbestos in component parts,
i.e., gaskets and packing, used in conjunction with its valves.
Decedent was allegedly exposed to asbestos fibers when, in replacing
the worn-out component parts to defendant’s valves, he scraped the
“baked on” asbestos material from the valves. We conclude that
Supreme Court properly denied defendant’s motion seeking summary
judgment dismissing the complaint against it (see generally Zuckerman
v City of New York, 49 NY2d 557, 562).

      Defendant contends that, because it did not produce or sell the
component parts containing asbestos, it did not place those parts into
                                 -2-                           651
                                                         CA 14-02303

the stream of commerce and thus cannot be liable for a failure to warn
of the dangers associated with asbestos, relying on Rastelli v
Goodyear Tire & Rubber Co. (79 NY2d 289). We have recently rejected
defendant’s interpretation of Rastelli as applied to component parts
containing asbestos that are used with its products (see Matter of
Eighth Jud. Dist. Asbestos Litig., 115 AD3d 1218, lv granted 24 NY3d
907), as has the First Department (see Matter of New York City
Asbestos Litig., 121 AD3d 230, mot to dismiss appeal denied 24 NY3d
1216).

     It is well established that “a plaintiff may recover in strict
products liability or negligence when a manufacturer fails to provide
adequate warnings regarding the use of its product . . . A
manufacturer has a duty to warn against latent dangers resulting from
foreseeable uses of its products of which it knew or should have
known” (Rastelli, 79 NY2d at 297). Although the Court of Appeals
determined that, under the facts presented in Rastelli, defendant
Goodyear Tire & Rubber Co. was not liable for failing to warn about
the potential dangers of mounting the tire on a multipiece rim, we
conclude that the same result is not mandated here (see New York City
Asbestos Litig., 121 AD3d at 252). Even assuming, arguendo, that
defendant met its initial burden of establishing that its valves did
not require components containing asbestos in order to perform as
intended, we conclude that plaintiff raised an issue of fact whether
defendant knew that components that did not contain asbestos would be
unable to withstand the heat for the intended purpose of the valve
when used in high pressure steam lines, that it intended that
component parts containing asbestos would be used for that purpose,
and thus that the exposure to asbestos when replacing those components
to ensure that the valves functioned properly was foreseeable (see
generally Rastelli, 79 NY2d at 297). Defendant’s reliance on our
decision in Matter of Eighth Jud. Dist. Asbestos Litg. (92 AD3d 1259,
1260, lv denied 19 NY3d 803) is misplaced, because in that case there
was no evidence that the valves required external insulation or that
defendant knew that external insulation would be used (see New York
City Asbestos Litig., 121 AD3d at 249; cf. Berkowitz v A.C.& S., Inc.,
288 AD2d 148, 149).




Entered:   June 12, 2015                        Frances E. Cafarell
                                                Clerk of the Court
