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ALBANY � An employer may not be held liable for a non-employee spouse’s second-hand exposure to asbestos, the Court of Appeals held yesterday in reversing an appellate panel. By a 6-0 vote, the Court concluded that the Port Authority of New York and New Jersey owed no duty of care to a woman who was allegedly injured through laundering her husband’s asbestos-contaminated clothing for 30 years. The ruling, which reversed the Appellate Division, First Department, comes as great relief to business groups that had implored the Court to overturn the mid-level panel, and as a great disappointment to advocates seeking to open a new avenue of relief to mesothelioma victims injured through second-hand contact with asbestos. Some state courts, such as one in New Jersey, had expressly adopted the First Department’s view while others, like one in Georgia, categorically rejected such reasoning. In yesterday’s opinion by Judge Susan Phillips Read, the Court ruled that the Port Authority could not be held liable as either an employer or landowner and that it had no relationship with the woman, Elizabeth Holdampf, that might trigger culpability. The Court reiterated its “reluctance to extend liability to a defendant for failure to control the conduct of others” and expressed concern that a contrary ruling would open a Pandora’s box of litigation. The judges said they were obligated to “consider the likely consequences of adopting the expanded duty urged by plaintiffs,” and indicated those potential consequences are more than they are willing to risk. “While logic might suggest (and plaintiffs maintain) that the incidence of asbestos-related disease allegedly caused by the kind of secondhand exposure in this case is rather low, experience counsels that the number of plaintiffs’ claims would not necessarily reflect that reality,” Judge Read wrote. Also yesterday, the Court: � Held in an estate case that the children of a man who was put up for adoption decades ago are entitled to share in the estate of their grandmother, who made a bequest to her adopted-out son who then predeceased her. The Court split 6-1 in reversing a 4-1 order of the Appellate Division, Fourth Department. � Broadly read an “arising out of” exclusion in a homeowner’s insurance policy to find that the carrier has no duty to defend and indemnify a customer who was sued when a child was kicked by a horse on an uninsured portion of his property. Maroney v. New York Central Mutual Fire Insurance Co. , 140, is a first-impression ruling affirming a 4-1 Appellate Division, Third Department, opinion. � Made clear � again � that failure to comply with discovery orders “should not and will not be tolerated.” In Andrea v. Arnone , 109, the Court held that counsel’s failure to meet deadlines requires dismissal of a personal injury case in which students, teachers and staff at a Jamestown middle school claimed they were injured through exposure to toxic substances during a renovation project. Contaminated Clothing Case The asbestos case involves John Holdampf, who worked as a Port Authority mechanic for three decades, and his wife, who washed his asbestos-contaminated clothing. Ms. Holdampf died of mesothelioma, a deadly cancer that most frequently affects people exposed to airborne asbestos fibers, one week after arguments were heard in this case on Sept. 13. Court records show that Mr. Holdampf handled asbestos products frequently in the various positions he held at the Port Authority. However, records also show that the agency issued five uniforms to Mr. Holdampf and provided laundry service to clean the garments. But about half the time, Mr. Holdampf wore his work clothes home, where Mrs. Holdampf washed them. At issue in the litigation was whether the Port Authority owed a duty of care to Ms. Holdampf. A trial court dismissed her claim, citing Widera v. Ettco Wire and Cable Co., 204 AD2d 306 (1994), for the proposition that there is no statutory or common law principle that would extend a duty of care owed to an employee to someone who was neither an employee nor a laborer at the work site at issue. But the First Department reversed, only to be reversed by the Court of Appeals. Judge Read, twice observing that the Court of Appeals has never decided or even considered whether a manufacturer or supplier of a product containing asbestos is liable for third-party or second-hand exposure, declined to “upset our long-settled common-law notions of an employer’s and landowner’s duties.” She said the Port Authority had “no relationship” with Ms. Holdampf, “much less that of master and servant (employer and employee), parent and child or common carrier and passenger” that could trigger liability. Judge Read also rejected the plaintiff’s argument that the Port Authority was in the best position to protect Ms. Holdampf and could have required her husband to wear clean clothes home or could have warned her of the dangers in washing his clothes. “[T]he Port Authority was, in fact, entirely dependent upon John Holdampf’s willingness to comply with and carry out such risk-reduction measures,” Judge Read said. But the plaintiff’s attorney, Erik Jacobs of Weitz & Luxenberg in Manhattan, said there is no indication the agency ever affirmatively advised Mr. Holdampf of the dangers of asbestos contamination, much less his wife. “The key thing, which I just feel the Court of Appeals is missing or that they are not giving enough credit to, is Mr. Holdampf was never told by the Port Authority that asbestos was dangerous,” Mr. Jacobs said. “It is a sad day. We the people want there to be a duty on those corporations and those entities.” Christian H. Gannon of Segal McCambridge Singer & Mahoney in Manhattan, counsel for the Port Authority, was not immediately available for comment. Chief Judge Judith S. Kaye did not sit on the case but, as usual, the Court offered no explanation for her absence from this matter. Estate Matter The estate case is ultimately rooted in a 1924 out-of-wedlock birth. Mildred B. Murphy turned what would be her only child over to nonrelatives, who named him Clair Willard Manning and legally adopted him when he was 19. Shortly thereafter, Mr. Manning and his birth mother re-established a relationship and maintained that relationship for the rest of their lives. Ms. Murphy acknowledged Mr. Manning’s children as her grandchildren, and left part of her estate to her son. She left the other half to her widowed sister-in-law. Mr. Manning died in March 2001, 11 months before his mother. When Ms. Murphy died, an issue arose as to whether her grandchildren � the children of the son she released for adoption in 1944 � would inherit the estate that would have gone to their father had he not predeceased his mother. The Appellate Division, Fourth Department, said the grandchildren were not entitled to inherit because their father was a legal “stranger” to Ms. Murphy. Yesterday, the Court of Appeals reversed in a 6-1 opinion. Judge Albert M. Rosenblatt, writing for the majority, said that under Domestic Relations Law �117, adopted children and their children are normally “strangers” to their birth relatives. But here, he said, when Ms. Murphy named her adopted-out son as a beneficiary, she made him a nonstranger and entitled his children to the benefit of the anti-lapse statute. Under EPTL �3-3.3(a), the anti-lapse law, when a parent is predeceased by a beneficiary child or sibling, the bequest passes to the children of the beneficiary. Judge Read dissented, finding the majority’s statutory construction contrary to the pertinent legislation, and quite possibly contrary to the wishes of the decedent. “[A]lthough this appeal turns on statutory interpretation, nothing on the face of the testator’s will indicates any intention to favor Clair Manning’s four children over her [sister-in-law],” Judge Read wrote. Insurance Issue Maroney,the insurance case, began in June 1997, when Marsha Maroney left her son Mark at the Otsego County home of John and Deborah Morris. The Morris’ daughter was to watch the boy. Ms. Morris brought the boy across the street with her to a barn where the Morrises housed several horses of their own and some that were boarded for a fee. While she was leading one of the horses out of the barn, Mark walked behind the animal and was kicked in the forehead. He suffered a fractured skull, with enduring physical and mental ailments. The Morrises had two insurance policies: a homeowner’s policy through New York Central for their house on the west side of Route 51 in Gilbertsville, and Broome County Cooperative Fire Insurance Co. insured the barn and pasture on the east side of the road up to $300,000. Both companies were notified of the accident, but New York Central invoked disclaimers for “business pursuits” and for any liability “arising out of premises . . . that is not an insured location.” The Third Department held for the insurance company in a decision affirmed yesterday. On appeal, the plaintiff argued that the exclusion for uninsured premises applies solely to injuries causally related to the physical condition of the property. The insurance company, in contrast, argued that the “arising out of” clause should be read broadly to include both the physical condition of the property and conduct related to the use of the uninsured premises that is related causally to the injury. “In this case of first impression, we agree with defendant insurer,” Judge Carmen Beauchamp Ciparick wrote for the 6-1 Court. The majority said the “narrow interpretation” of the “arising out of” clause urged by the plaintiff and dissenting judge “would extend coverage beyond the fair intent and meaning of the insurance contract.” It said the lack of supervision of the child and the injury “occurred on the uninsured premises and were directly related to the activities carried on at premises specifically excluded from coverage.” Judge Albert M. Rosenblatt dissented. “To my mind, the phrase ‘arising out of a premises’ does not, without strain, refer to the conduct of the insured,” he said. He added that the notice of disclaimer that the insurer activated through the exclusion “must be highly specific” and “ambiguity should be construed against the carrier.” Jeffrey D. Wait of Latham, Albany County, represented the carrier. Michael J. Hutter of Powers & Santola in Albany represented the plaintiff. Toxic Materials Case Andreapresented the Court with its latest opportunity to remind counsel that it was serious when it said in Kihl v. Pfeffer, 94 NY2d 118 (1999), Brill v. City of New York, 2 NY3d 648 (2004) and Miceli v. State Farm Auto Insurance Co., 3 NY3d 725, that deadlines must be met. The case involved multiple plaintiffs claiming they were poisoned by toxic materials during the renovation of the Jefferson Middle School in 1992. The action began in 1995 and Supreme Court issued orders directing the plaintiffs to reply to interrogatories and discovery demands every year from 1996 through 1999. Finally, in May 2000, the court dismissed the action. The plaintiffs retained new attorneys and appealed, and the court reinstated the complaints, only to get reversed by the Fourth Department. Yesterday, in a 7-0 opinion by Judge Robert S. Smith the Court of Appeals said the trial judge was too accommodating. “Supreme Court was of course correct in thinking it undesirable to punish plaintiffs for the failure of their counsel,” Judge Smith wrote. “But what is undesirable is sometimes also necessary, and it is often necessary, as it is here, to hold parties responsible for their lawyers’ failure to meet deadlines. Litigation cannot be conducted efficiently if deadlines are not taken seriously, and we make clear again, as we have several times before, that disregard of deadlines should and will not be tolerated.” Appearing on the appeal were Allan M. Lewis of Lewis & Lewis in Buffalo for the plaintiffs; Jason E. Markel of Hodgson Russ in Buffalo for the Jamestown Public Schools; and Robert A. Dean of Grand Island, N.Y., and Laurie Styka Bloom of Nixon Peabody in Buffalo for several respondents. � John Caher can be reached at [email protected] .

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