Opinion
February 16, 2000
Appeal from Order of Supreme Court, Erie County, Kane, J. — Summary Judgment.
PRESENT: GREEN, A. P. J., HAYES, WISNER AND BALIO, JJ.
Order unanimously reversed on the law with costs, motion denied and complaint against defendant Spaulding Composites Company, Inc. reinstated.
Memorandum:
Plaintiff commenced this action seeking damages for personal and wrongful death resulting from the exposure of decedent to asbestos-containing products during his at Hercules Products, Inc. (Hercules). Supreme Court erred in granting the motion of defendant Spaulding Composites Company, Inc. (Spaulding) for summary judgment dismissing the complaint against it. Spaulding met its initial burden on the motion by establishing that it supplied no asbestos-containing products to Hercules during the period of decedent's employment ( see, Matter of New York City Asbestos Litig., 216 A.D.2d 79, 80; Zankowski v. Johns-Manville Corp., 204 A.D.2d 1023). The burden shifted to plaintiff to "show facts sufficient to require a trial of any issue of fact" (CPLR 3212 [b]; see, Zuckerman v. City of New York, 49 N.Y.2d 557, 562). Plaintiff met that burden by submitting the affidavits of former Hercules employees who assert that they observed decedent cutting sheets manufactured by Spaulding containing asbestos fibers ( see, Lloyd v. W.R. Grace Co.-Conn., 215 A.D.2d 177; Reid v. Georgia-Pacific Corp., 212 A.D.2d 462, 463; Zankowski v. Johns-Manville Corp., supra). In determining that those affidavits were insufficient to raise a triable issue of fact, the court improperly resolved issues of credibility ( see, Town Bd. v. Lee, 241 A.D.2d 958, 959).