Opinion
Index No. 190126/2020 Motion Seq. No. 007
12-11-2023
CHRISTINA THOMAS, Plaintiff, v. AVON PRODUCTS, INC., CHANEL, INC, CLINIQUE LABORATORIES, LLC. ESTEE LAUDER INC. JMI FABI (DIANA) LLC, KOLMAR LABORATORIES, INC., L'OREAL USA, INC.. REVLON INC.. INDIVIDUALLY ANDAS SUCCESSORIN-INTEREST TO CHARLES OF THE RITZ, THE ESTEE LAUDER COMPANIES INC., YVES SAINT LAURENT AMERICA, INC. Defendant.
Unpublished Opinion
MOTION DATE 10/10/2023
PRESENT: HON. ADAM SILVERA, Justice
DECISION + ORDER ON MOTION
ADAM SILVERA, J.S.C.
The following e-filed documents, listed by NYSCEF document number (Motion 007) 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 265, 266, 267, 268, 269, 270, 271, 272, 273, 274, 275, 276, 277, 278, 279, 280, 281, 282, 283, 284, 285, 286, 287, 288, 289, 290, 291,292, 293, 294, 295, 296, 297, 298, 299, 300, 301, 302, 303, 304, 305, 306, 307, 308, 309, 310, 311, 312, 313, 314, 315, 316, 317, 318, 319, 320, 321, 322, 323, 324, 325, 326, 327, 328, 329, 330, 331, 332, 333, 334, 335, 336, 337, 338, 339, 340, 341, 342, 343, 344, 345, 346, 347, 348, 349, 350, 351, 352, 353, 354, 355, 356, 357, 358, 359, 360, 361, 362, 363, 364, 365, 366, 445, 446, 447, 448, 449 were read on this motion to/for JUDGMENT - SUMMARY.
Upon the foregoing documents, it is ordered that the instant motion for summary judgment seeking dismissal of this action, pursuant to CPLR §3212, is denied for the reasons set forth below.
Here, defendant Port Jervis Laboratories, Inc., s/h/a Kolmar Laboratories, Inc. ("Kolmar") moves for summary judgment to dismiss this action on the grounds that plaintiff Christina Thomas has not established that she was exposed to any asbestos-containing product manufactured by Kolmar, that any such exposure has not been adequately linked to causation, and that any such product was manufactured per the specifications of Johnson &Johnson and for which defendant Kolmar would not be liable. See Memorandum of Law in Support of Motion for Summary Judgment by Port Jervis Laboratories, Inc. s/h/a Kolmar Laboratories, Inc., p. 1-2. In opposition, plaintiff notes that defendant has confirmed its manufacturing role in a product at issue herein and has had a significant role in manufacturing such product, that plaintiff s experts have offered exposure evidence regarding asbestos in the products at issue, and that defendant Kolmar can be held liable for a product it manufactured regardless of its contractor status. See Memorandum of Law in Support of Plaintiff s Opposition to Defendant Kolmar Laboratories, Inc.'s Motion for Summary Judgment, p. 9-10. Defendant Kolmar replies, highlighting its expert affidavits from corporative representatives emphasizing that it was only one of many manufacturers for the products at issue herein and that plaintiffs use of such products both predated and post-dated defendant Kolmar's manufacturing period of it. See Reply Memorandum of Law in Support of Motion for Summary Judgment by Port Jervis Laboratories, Inc. s/h/a Kolmar Laboratories, Inc., p. 5. Moving defendant further notes that plaintiff has offered no expert testimony specific to defendant Kolmar or its products, and that plaintiff relies heavily on the opinion of Dr. Moline. Id. at p. 9-10. Finally, moving defendant reiterates its "contractor" defense. Id. at 11.
The Court notes that summary judgment is a drastic remedy and should only be granted if the moving party has sufficiently established that it is warranted as a matter of law. See Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324 (1986). "The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case". Winegrad v New York University Medical Center, 64 N.Y.2d 851, 853 (1985). Despite the sufficiency of the opposing papers, the failure to make such a showing requires denial of the motion. See id. at 853.
Additionally, summary judgment motions should be denied if the opposing party presents admissible evidence establishing that there is a genuine issue of fact remaining. See Zuckerman v City of New York, 49 N.Y.2d 557, 560 (1980). "In determining whether summary judgment is appropriate, the motion court should draw all reasonable inferences in favor of the nonmoving party and should not pass on issues of credibility." Garcia v J. C. Duggan, Inc., 180 A.D.2d 579, 580 (1st Dep't 1992), citing Dauman Displays, Inc.. v Masturzo, 168 A.D.2d 204 (1st Dep't 1990). The court's role is "issue-finding, rather than issue-determination". Sillman v Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 404 (1957) (internal quotations omitted). As such, summary judgment is rarely granted in negligence actions unless there is no conflict at all in the evidence. See Ugarriza v Schmieder, 46 N.Y.2d 471, 475-476 (1979). Furthermore, the Appellate Division, First Department has held that on a motion for summary judgment, it is moving defendant's burden "to unequivocally establish that its product could not have contributed to the causation of plaintiffs injury". Reid v Georgia-Pacific Corp., 212 A.D.2d 462, 463 (1st Dep't 1995).
The appropriate standard at summary judgment for moving defendant Kolmar can be found in Dyer v Amchem Products Inc., 207 A.D.3d 408, 409 (1st Dep't 2022). In Dyer, defendants were granted summary judgment not by "simply argu[ing] that plaintiff could not affirmatively prove causation" but by "affirmatively proving], as a matter of law, that there was no causation." Id. The Appellate Division, First Department, recently affirmed this Court's decision in Sason v Dykes Lumber Co., Inc., et. al., 2023 NY Slip Op 05796 (1st Dep't 2023), stating that "the parties' competing causation evidence constituted the classic "battle of the experts'" sufficient to raise a question of fact, and to preclude summary judgment.
Moving defendant's arguments focus largely on plaintiffs evidence and lack of ability to pinpoint the proportion of products used that may have been actually manufactured by defendant Kolmar, if any, while confirming simultaneously that they were manufacturers of such products and that products of their manufacturing were available prior to plaintiff's usage period in the 1990s. This is plainly insufficient to meet moving defendant's standard at summary judgment and defendant Kolmar has failed to "establish that its products could not have contributed to the causation of plaintiffs injury." Reid v Georgia-Pacific Corp., supra.
Plaintiffs expert reports establish conflicting evidence regarding the dangers of the talc used by moving defendant and moving defendant's knowledge of such dangers. Further, plaintiffs testimony clearly identifies products that moving defendant has in fact been a manufacturer of, and described her usage of such products during time periods after moving defendant's confirmed involvement.
Accordingly, it is
ORDERED that defendant Kolmar's motion for summary judgment is denied in its entirety; and it is further
ORDERED that within 30 days of entry plaintiff shall serve all parties with a copy of this Decision/Order with notice of entry.
This constitutes the Decision/Order of the Court.