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New York Mesothelioma Lawyers Defeat LIRR’s Motion for Summary Judgment

NEW YORK, New York (PRWEB) May 22, 2013

On Friday, May 17, 2013, Justice Sherry Klein Heitler, the presiding judge for the New York City Asbestos Litigation, denied a motion for Summary Judgment brought by the Long Island Railroad (“LIRR”) against personal injury claims* brought by a Queens, NY, resident, who, according to court documents, was diagnosed with mesothelioma, an aggressive cancer caused by asbestos exposure.

According to court documents, the injured party, Morton Frieder, was diagnosed with mesothelioma despite having never worked hands-on with asbestos-containing materials. However, as per the court documents, Mr. Frieder spent seven years working in a diner located within the gated premises of the LIRR’s Morris Park train repair yard, where asbestos-containing materials were used “routinely” by the LIRR. Lori Benavides, one of the plaintiffs’ New York mesothelioma lawyers from the NYC-headquartered national asbestos law firm Levy Phillips & Konigsberg LLP (“LPK”), briefed and argued Plaintiffs’ opposition to LIRR’s motion. “The decision** is an important victory for people like Mr. Frieder and many others who did not work directly with asbestos products and yet were diagnosed with mesothelioma, which is an asbestos-caused cancer,” commented Ms. Benavides.

As per the court motion documents, the LIRR argued that, (1) the LIRR did not employ Mr. Frieder nor own the trailer out of which the diner operated, and thus it owed no duty of care to Mr. Frieder to warn about the dangers associated with its use of asbestos at the yard, and (2) the plaintiffs did not establish that Mr. Frieder was exposed to asbestos from the LIRR workers’ clothing. In her decision, Justice Heitler disagreed on both counts.

The court decision further reveals that, while Mr. Frieder never worked hands-on with asbestos, he testified that a “couple hundred” LIRR workers would dine at the diner during breakfast, coffee breaks and lunch daily. These LIRR workers never changed out of their work clothes before eating at the diner. When they came into the diner “they would bang off their boots, take their gloves off and throw them on the counter. If they had a coat or jacket on, they would just shake it off” causing “dust all over the place” that required Mr. Frieder and other diner workers to perform “really heavy sweeping and cleanup of the diner.” Plaintiffs also submitted the testimony of two former employees of the LIRR – George Muckian, a former LIRR boilermaker, and LPK’s client Norman McCollum, a former LIRR electrician in the roundhouse at the Morris Park yard. Mr. Muckian testified regarding the asbestos cement and other asbestos materials he used while maintaining LIRR’s powerhouse and equipment on trains that came into the yard. He explained that the work he did with the asbestos materials caused a lot of dust to be released into the air around him, landing on his clothes, his hair, and his hands. He then explained that workers, including himself, would then go into the diner, where he specifically recalled seeing Mr. Frieder daily, without first washing or changing out of their dusty clothes. Mr. McCollum’s testimony provided further elaboration on the asbestos materials electricians and other workers at the yard used “routinely.” Justice Heitler found that Mr. McCollum’s testimony, in conjunction with Mr. Frieder’s and Mr. Muckian’s testimony, created a question of fact for a jury as to “whether LIRR workers with contaminated clothes entered the Diner and exposed Mr. Frieder to asbestos.”

According to court documents, as to LIRR’s duty of care, Justice Heitler held that because, “it is evident that the LIRR controlled the circumstances of the Diner and was in the best position to identify and remedy the dangerous condition that allegedly gave rise to Mr. Frieder’s injury,” LIRR had a duty to prevent that harm. Because the LIRR owned the Morris Park facility, maintained a fence and front gate which prohibited entry to the yard by the general public, had exclusive control over the working conditions within the repair yard, its employees made up all of the Diner’s patrons, it supplied power and heat to the diner, and had some say over the operating hours, the fact simply did not matter that Mr. Frieder’s employer owned the trailer out of which the diner operated. Rather, “it was the LIRR, and not the Diner, that was in the best position to know about the use of asbestos on the premises and to take reasonable care to prevent Mr. Frieder’s exposure thereto.” Justice Heitler also rejected LIRR’s reliance on Holdampf v. A.C. & S., Inc., 5 N.Y.3d 486 (2005), as “Holdampf is fundamentally distinguishable from the case at bar. Here, the LIRR had control of both the work site where the alleged exposure occurred and its employees. Unlike the husband in Holdampf who wore his asbestos-covered clothes home, the workers here never left the Morris Park facility and thus never left the LIRR’s sphere of influence.” Hence, “in such circumstances,” a premise owner, such as LIRR, owes a duty of care to invitees, such as Mr. Frieder.

The legal ruling, on behalf of Mr. Frieder, is an important one to people who develop mesothelioma, lung cancer or other asbestos-related diseases as the result of exposure to asbestos products used by others. “Unfortunately, asbestos is a powerful carcinogen that has a tendency to remain on the clothing of workers and remain in the environment long after it becomes airborne. This decision will help protect the legal rights of those that were innocently exposed to asbestos, even though they were not the ones directly working with products,” explained Ms. Benavides, a mesothelioma attorney licensed to practice law in the states of New York, Massachusetts, Washington, Illinois, and Wisconsin.

Mesothelioma is an asbestos-related cancer that occurs most commonly in the pleura or peritoneum that line the lungs and abdominal cavities, respectively. The disease occurs after a “latency period” of many decades, which explains why many people exposed to asbestos are diagnosed with mesothelioma many decades after the exposure itself occurs.

For over a quarter of a century, mesothelioma lawyers at LPK have been among the pioneers of asbestos litigation in America. The firm’s asbestos attorneys have been recognized as nationwide leaders in representing the rights of mesothelioma victims and their families. U.S. News & World Report and Best Lawyers have recently named the firm the 2013 Law Firm of the Year in plaintiff’s product liability category.

For more information about this or other mesothelioma lawsuits, please contact LPK’s New York mesothelioma lawyers at 1-800-MESOLAW (1-800-637-6529) or submit an online inquiry at, 24 hours a day, 7 days a week.

  • Frieder v. Long Island Railroad, et al., Index # 190212/12 (Sup. Ct. N.Y. County May 17, 2013)(S. K. Heitler, J.);
** See attached copy of the judge’s decision;

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