Matter of New York City Asbestos Litig.

Appellate Division of the Supreme Court of New York

Matter of New York City Asbestos Litig.

122 A.D.3d 520, 997 N.Y.S.2d 381

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 20, 2014

Docket13566 190472/12

StatusPublished

Cited by5 cases

This text of 122 A.D.3d 520 (Matter of New York City Asbestos Litig.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Matter of New York City Asbestos Litig., 122 A.D.3d 520, 997 N.Y.S.2d 381 (N.Y. Ct. App. 2014).

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Opinion

Order, Supreme Court, New York County (Sherry Klein Heitler, J.), entered on or about December 13, 2013, which denied defendant’s motion for summary judgment dismissing the complaint and all cross claims as against it, unanimously modified, on the law, to grant the motion to the extent of dismissing plaintiffs’ claims related to defendant Georgia-Pacific LLC’s (defendant) wallboard products allegedly containing asbestos, and otherwise affirmed, without costs.

*521 The complaint alleges that plaintiff William Berensmann was exposed to asbestos-containing sheetrock and joint compound manufactured by, among other companies, defendant. As an initial matter, it is undisputed that defendant never manufactured wallboards containing asbestos, and thus, the claims relating to defendant’s wallboards are dismissed.

Summary judgment in defendant’s favor was otherwise properly denied since defendant failed “to unequivocally establish that its product could not have contributed to the causation of plaintiffs injury” (Reid v Georgia-Pacific Corp., 212 AD2d 462, 463 [1st Dept 1995]). That plaintiff may have had the subjective belief that the joint compound that he used to perform repairs in his home did not contain asbestos does not warrant a different determination, where the evidence demonstrates that defendant did manufacture joint compound containing asbestos at the relevant times. Although the record shows that defendant began to manufacture and ship asbestos-free joint compound around the time that plaintiff purchased defendant’s product, issues of fact exist as to whether asbestos-free joint compound was available in Manhattan where plaintiff made his purchase of the subject product (see e.g. Lloyd v W.R. Grace & Co. — Conn., 215 AD2d 177 [1st Dept 1995]).

We have considered the remaining contentions and find them unavailing.

Concur — Renwick, J.E, Saxe, Moskowitz, DeGrasse and Richter, JJ.

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Order, Supreme Court, New York County (Sherry Klein Heitler, J.), entered on or about December 13, 2013, which denied defendant’s motion for summary judgment dismissing the complaint and all cross claims as against it, unanimously modified, on the law, to grant the motion to the extent of dismissing plaintiffs’ claims related to defendant Georgia-Pacific LLC’s (defendant) wallboard products allegedly containing asbestos, and otherwise affirmed, without costs.

*521 The complaint alleges that plaintiff William Berensmann was exposed to asbestos-containing sheetrock and joint compound manufactured by, among other companies, defendant. As an initial matter, it is undisputed that defendant never manufactured wallboards containing asbestos, and thus, the claims relating to defendant’s wallboards are dismissed.

Summary judgment in defendant’s favor was otherwise properly denied since defendant failed “to unequivocally establish that its product could not have contributed to the causation of plaintiffs injury” (Reid v Georgia-Pacific Corp., 212 AD2d 462, 463 [1st Dept 1995]). That plaintiff may have had the subjective belief that the joint compound that he used to perform repairs in his home did not contain asbestos does not warrant a different determination, where the evidence demonstrates that defendant did manufacture joint compound containing asbestos at the relevant times. Although the record shows that defendant began to manufacture and ship asbestos-free joint compound around the time that plaintiff purchased defendant’s product, issues of fact exist as to whether asbestos-free joint compound was available in Manhattan where plaintiff made his purchase of the subject product (see e.g. Lloyd v W.R. Grace & Co. — Conn., 215 AD2d 177 [1st Dept 1995]).

We have considered the remaining contentions and find them unavailing.

Concur — Renwick, J.E, Saxe, Moskowitz, DeGrasse and Richter, JJ.

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Bluebook (online)

122 A.D.3d 520, 997 N.Y.S.2d 381, Counsel Stack Legal Research, https://law.counselstack.com/opinion/matter-of-new-york-city-asbestos-litig-nyappdiv-2014.

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