Opinion
13620 Index No. 190446/14 Case No. 2020-03234
04-20-2021
In the MATTER OF NEW YORK CITY ASBESTOS LITIGATION Frank M. Salzano etc., et al., Plaintiffs–Respondents, v. Air & Liquid Systems Corporation, etc., et al., Defendants, Kaiser Gypsum Company, Inc., Defendant–Appellant.
Lewis Brisbois Bisgaard & Smith, LLP, New York (Nicholas Hurzeler of counsel), for appellant. Weitz & Luxenberg, P.C., New York (Jason P. Weinstein of counsel), for respondents.
Lewis Brisbois Bisgaard & Smith, LLP, New York (Nicholas Hurzeler of counsel), for appellant.
Weitz & Luxenberg, P.C., New York (Jason P. Weinstein of counsel), for respondents.
Webber, J.P., Kern, Oing, Gonza´lez, JJ.
Order, Supreme Court, New York County (Manuel J. Mendez, J.), entered on or about January 13, 2020, which denied defendant Kaiser Gypsum Company, Inc.’s motion for summary judgment dismissing the complaint as against it, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment accordingly.
Plaintiffs failed to identify defendant's products as the source of the decedent's alleged exposure to asbestos (see Matter of New York City Asbestos Litig., 216 A.D.2d 79, 80, 628 N.Y.S.2d 72 [1st Dept. 1995] ; Schiraldi v. U.S. Min. Prods., 194 A.D.2d 482, 483, 599 N.Y.S.2d 572 [1st Dept. 1993] ). The only evidence in the record of such a nexus is the inadmissible hearsay statement of a coworker of the decedent and his son when they were working together at some point from 1972 to 1974 that they were using defendant's joint compound (see e.g. Matter of New York City Asbestos Litig. [Florio], 2019 N.Y. Slip Op. 30758(U), 2019 WL 1330916 [Sup. Ct., N.Y. County 2019] ). The statement does not qualify as a present sense impression and therefore an exception to the hearsay rule. There is nothing in the statement to indicate that it described an event or condition that the coworker perceived (see generally People v. Brown, 80 N.Y.2d 729, 732–733, 594 N.Y.S.2d 696, 610 N.E.2d 369 [1993] ). Rather, it simply reflected the coworker's understanding of a fact – the brand of the joint compound that he and the decedent were using – without any indication of the source of his knowledge.
By filing a note of issue, plaintiffs certified that disclosure was complete, thereby waiving their right to any further discovery ( Melcher v. City of New York, 38 A.D.3d 376, 377, 832 N.Y.S.2d 186 [1st Dept. 2007] ; see Matter of New York City Asbestos Litig., 2019 N.Y. Slip Op. 30035(U), *2–3, 2019 WL 120558 [Sup. Ct., N.Y. County 2019] ).