Opinion
13907 Index No. 190011/17 Case No. 2020-04707
05-25-2021
In the MATTER OF NEW YORK CITY ASBESTOS LITIGATION Michelle Shanahan, as Executrix for the Estate of Arthur Shanahan and Michelle Shanahan Individually, Plaintiff–Respondent, v. Aerco International, Inc. et al., Defendants, Mario & DiBono Plastering Co., Inc., Defendant–Appellant.
Clyde & Co U.S. LLP, New York (Jeffrey C. Fegan of counsel), for appellant. Weitz & Luxenberg, P.C., New York (Jason P. Weinstein of counsel), for respondent.
Clyde & Co U.S. LLP, New York (Jeffrey C. Fegan of counsel), for appellant.
Weitz & Luxenberg, P.C., New York (Jason P. Weinstein of counsel), for respondent.
Renwick, J.P., Webber, Gonza´lez, Scarpulla, JJ.
Order, Supreme Court, New York County (Manuel J. Mendez, J.), entered on or about May 28, 2020, which denied defendant Mario & DiBono Plastering Co., Inc.’s (M & D) motion for summary judgment dismissing the complaint against it, unanimously affirmed, without costs.
The court properly denied M & D's summary judgment motion since it failed to unequivocally establish that the materials it used could not have contributed to plaintiff's injury (see Matter of New York City Asbestos Litig., 122 A.D.3d 520, 521, 997 N.Y.S.2d 381 [1st Dept. 2014] ; Reid v. Georgia–Pacific Corp., 212 A.D.2d 462, 463, 622 N.Y.S.2d 946 [1st Dept. 1995] ). In light of the decedent's testimony, which M & D submitted in support of it motion, identifying the fireproofing as a source of his exposure and M & D as the contractor that applied the fireproofing, plaintiff's failure to specifically list M & D in response to interrogatories was not, by itself, sufficient for M & D to satisfy its burden (cf. Schiraldi v. U.S. Min. Prods., 194 A.D.2d 482, 483, 599 N.Y.S.2d 572 [1st Dept. 1993] ).
In any event, in opposition to M & D's motion, plaintiff submitted sufficient evidence of facts and conditions from which M & D's liability may be reasonably inferred ( Reid at 463, 622 N.Y.S.2d 946 ). In addition to decedent's own testimony, this included documentation from the 1960s and testimony from a representative of one of M & D's suppliers concerning the use of asbestos in the fireproofing material, as well as M & D's knowledge of hazards associated with such fireproofing material ( id. ). Contrary to M & D's contention, the court properly considered the testimony and documentation submitted by plaintiff in opposition to the motion ( Matter of N.Y. City Asbestos Litig., 7 A.D.3d 285, 285, 776 N.Y.S.2d 253 [1st Dept. 2004] ; see also Matter of New York City Asbestos Litig., 190 A.D.3d 589, 136 N.Y.S.3d 722 [1st Dept. 2021] ).
Regardless of whether M & D would have had the burden of showing that it did not launch a force or instrument of harm, the evidence submitted by plaintiff in opposition to the motion was sufficient to raise an issue of fact as to whether M & D's actions launched such a force or instrument of harm (see generally Karydas v. Ferrara–Ruurds, 142 A.D.3d 771, 772, 37 N.Y.S.3d 16 [1st Dept. 2016] ).