Majority
p. 1008In the Matter of Eighth Judicial District Asbestos Litigation. Carole A. Rogacki, as Executrix of Daniel P. Rawski, Deceased, Respondent, v Acands, Inc., et al., Defendants, and Celotex Corporation, as Wholly Owned Subsidiary of Jim Walter Corporation, Individually and as Successor in Interest to Philip Carey Corporation and Others, Appellant. (Appeal No. 2.)
— Judgment unanimously affirmed
p. 1009
without costs. Memorandum: Testimony of unavailable witnesses, taken in proceedings in which decedent was not a party and whom he did not have an opportunity to cross-examine, was not admissible (see, CPLR 3117, 4517; see also, Healy v Rennert, 9 NY2d 202 , 208). Evidence of successful workers’ compensation claims made by asbestos plant workers during the 1940s through the 1960s for asbestos-related pulmonary diseases, as well as evidence of the incidence of pulmonary diseases among asbestos plant workers, was properly admitted on the issue of defendant Celotex Corporation’s knowledge of the risks of asbestos exposure and the reasonableness of its failure to warn the end-users of its product of those risks. Inasmuch as Dr. Mancuso’s testimony was from a 1983 deposition at which defendant was represented, it was properly admitted pursuant to CPLR 3117 (c). We have examined defendant’s remaining arguments and find them to be without merit. (Appeal from Judgment of Supreme Court, Erie County, Notaro, J. — Products Liability.) Present — Denman, P. J., Balio, Lawton, Fallon and Doerr, JJ.
Cases cited
- Healy v. Rennert 9 NY2d 202 at 208 p. 1009