NAWROCKI v. COASTAL CORPORATION (2007)

Supreme Court, Appellate Division, Fourth Department, New York.

Michael NAWROCKI, Plaintiff-Respondent, v. The COASTAL CORPORATION, Kurk Fuel Company and Pautler Oil Service, Defendants-Appellants.
Kurk Fuel Company, Third-Party Plaintiff, v. Schmitt Sales, Inc., Noco Energy Corp., Flint Hills Resources, LP, and Coastal Refining & Marketing, Inc., Third-Party Defendants-Appellants.
Pautler Oil Service, Third-Party Plaintiff, v. Reid Petroleum Corporation, Third-Party Defendant-Appellant.
Pautler Oil Service, Third-Party Plaintiff, v. Exxon Mobil Oil Corporation, Third-Party Defendant-Appellant.
Noco Energy Corp., Fourth-Party Plaintiff, v. Canada Imperial Oil Limited and El Paso Merchant Energy-Petroleum Company, Formerly Known as Coastal Refining & Marketing, Inc., Fourth-Party Defendants-Appellants.

Decided: November 09, 2007

PRESENT: HURLBUTT, J.P., MARTOCHE, SMITH, CENTRA, AND FAHEY, JJ.

Woolf, McClane, Bright, Allen & Carpenter, PLLC, Knoxville, Tennessee (Louis C. Woolf of The Tennessee Bar, Admitted ProHac Vice, of Counsel), Thorn Gershon Tymann & Bonnani, LLP, Albany, Goodwin Procter LLP, New York City, Hodgson Russ LLP, Buffalo, Bond, Schoeneck & King, PLLC, Syracuse, Goldberg Segalla, LLP, Buffalo, and Personius Melber LLP, Buffalo, for Defendants-Appellants The Coastal Corporation and Kurk Fuel Company, Third-Party Defendants-Appellants Schmitt Sales, Inc., Noco Energy Corp., Flint Hills Resources, LP, Coastal Refining & Marketing, Inc. and Exxon Mobil Oil Corporation, and Fourth-Party Defendants-Appellants. Brown & Kelly, LLP, Buffalo (Jessica J. Burgasser of Counsel), for Defendant-Appellant Pautler Oil Service. Jaeckle Fleischmann & Mugel, LLP, Buffalo (Mitchell J. Banas, Jr., of Counsel), for Third-Party Defendant-Appellant Reid Petroleum Corporation. Richard G. Berger, Buffalo, for Plaintiff-Respondent.

Plaintiff commenced this action alleging that he contracted aplastic anemia as a result of his exposure to gasoline and the benzene contained therein while working as a groundskeeper for a school for three years and while filling gasoline cans at a gas station for his lawn mower for 28 years. Defendants, third-party defendants, and fourth-party defendants (movants) moved and cross-moved for, inter alia, summary judgment dismissing the complaint in the main action. Supreme Court erred in denying those parts of the motions and cross motions. In support thereof, the movants submitted expert affidavits stating that there was no scientific or medical literature establishing that plaintiff's dermal exposure to gasoline or the estimated level of plaintiff's exposure to benzene contained in gasoline through inhalation of gasoline vapors and engine exhaust can cause aplastic anemia. The expert affidavit submitted by plaintiff in opposition to the motions and cross motions was insufficient to raise an issue of fact with respect to causation. “[A]n opinion on causation should set forth a plaintiff's exposure to a toxin, that the toxin is capable of causing the particular illness (general causation) and that plaintiff was exposed to sufficient levels of the toxin to cause the illness (specific causation)” (Parker v. Mobil Oil Corp., 7 N.Y.3d 434, 448, 824 N.Y.S.2d 584, 857 N.E.2d 1114, rearg. denied 8 N.Y.3d 828, 828 N.Y.S.2d 289, 861 N.E.2d 104). The affidavit of plaintiff's expert failed to set forth the manner in which he estimated plaintiff's exposure to a specific level of benzene. Moreover, the affidavit of plaintiff's expert failed to refer to any study establishing that plaintiff was exposed to sufficient levels of benzene to cause aplastic anemia. We thus conclude that the movants established their entitlement to judgment as a matter of law, and plaintiff failed to raise a triable issue of fact (see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously reversed on the law without costs, the motions and cross motions are granted in part and the complaint is dismissed.

MEMORANDUM:

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