| Nawrocki v Coastal Corp. |
| 2007 NY Slip Op 08564 [45 AD3d 1341] |
| November 9, 2007 |
| Appellate Division, Fourth Department |
| Michael Nawrocki, Respondent, v The Coastal Corporation et al.,Appellants. Kurk Fuel Company, Third-Party Plaintiff, v Schmitt Sales, Inc., et al.,Third-Party Defendants-Appellants. Pautler Oil Service, Third-Party Plaintiff, v Reid PetroleumCorporation, Third-Party Defendant-Appellant. Pautler Oil Service, Third-Party Plaintiff, vExxon Mobil Oil Corporation, Third-Party Defendant-Appellant. Noco Energy Corp.,Fourth-Party Plaintiff, v Canada Imperial Oil Limited et al., Fourth-PartyDefendants-Appellants. |
—[*1] Brown & Kelly, LLP, Buffalo (Jessica J. Burgasser of counsel), for defendant-appellantPautler Oil Service. Jaeckle Fleischmann & Mugel, LLP, Buffalo (Mitchell J. Banas, Jr., of counsel), forthird-party defendant-appellant Reid Petroleum Corporation. Richard G. Berger, Buffalo, for plaintiff-respondent.
Appeals from an order of the Supreme Court, Erie County (Diane Y. Devlin, J.), entered June20, 2006. The order denied the motions and cross motions of defendants, third-party defendantsand fourth-party defendants for, inter alia, summary judgment dismissing the complaint.
It is hereby ordered that the order so appealed from be and the same hereby is unanimouslyreversed on the law without costs, the motions and cross motions are granted in part and thecomplaint is dismissed.
Memorandum: Plaintiff commenced this action alleging that he contracted aplastic anemia asa result of his exposure to gasoline and the benzene contained therein while working as agroundskeeper for a school for three years and while filling gasoline cans at a gas station for hislawn 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 inthe main action. Supreme Court erred in denying those parts of the motions and cross motions. Insupport thereof, the movants submitted expert affidavits stating that there was no scientific ormedical literature establishing that plaintiff's dermal exposure to gasoline or the estimated levelof plaintiff's exposure to benzene contained in gasoline through inhalation of gasoline vapors andengine exhaust can cause aplastic anemia. The expert affidavit submitted by plaintiff inopposition to the motions and cross motions was insufficient to raise an issue of fact with respectto causation. "[A]n opinion on causation should set forth a plaintiff's exposure to a toxin, that thetoxin is capable of causing the particular illness (general causation) and that plaintiff wasexposed to sufficient levels of the toxin to cause the illness (specific causation)" (Parker v Mobil Oil Corp., 7 NY3d434, 448 [2006], rearg denied 8 NY3d 828 [2007]). The affidavit of plaintiff's expertfailed to set forth the manner in which he estimated plaintiff's exposure to a specific level ofbenzene. Moreover, the affidavit of plaintiff's expert failed to refer to any study establishing thatplaintiff was exposed to sufficient levels of benzene to cause aplastic anemia. We thus concludethat the movants established their entitlement to judgment as a matter of law, and plaintiff failedto raise a triable issue of fact (see generally Zuckerman v City of New York, 49 NY2d557, 562). Present—Hurlbutt, J.P., Martoche, Smith, Centra and Fahey, JJ. [See 13Misc 3d 1227(A), 2006 NY Slip Op 52017(U) (2006).]