Zankowski v. Johns-Manville Corp.

204 A.D.2d 1023, 614 N.Y.S.2d 343, 1994 N.Y. App. Div. LEXIS 6848

Opinion

—Order unanimously reversed on the law without costs, motion denied and complaint reinstated. Memorandum: Supreme Court improperly granted summary judgment to defendant Armstrong World Industries, Inc., incorrectly sued as Armstrong Cork Company (Armstrong) dismissing the complaint against it. Armstrong demonstrated its initial entitlement to judgment in its favor as a matter of law by the tender of evidentiary proof in admissible form that established that decedent was not exposed to asbestos-containing products supplied by Armstrong to decedent’s employer. The burden then shifted to plaintiffs to submit evidentiary proof in admissible form to "show facts sufficient to require a trial of any issue of fact” (CPLR 3212 [b]; see also, Zuckerman v City of New York, 49 NY2d 557, 562). Plaintiffs met their burden by the submission of the deposition testimony of decedent and a fellow employee, together with invoices that showed that Armstrong’s products were shipped to decedent’s worksite.

Finally, the issues regarding the extent of decedent’s exposure to products manufactured by Armstrong that contained asbestos and whether that exposure substantially contributed to decedent’s injuries were not raised by Armstrong before Supreme Court, and therefore are not properly before us (see, Byrne Family Mgt. v Village of Phoenix, 190 AD2d 1032). (Appeal from Order of Supreme Court, Onondaga County, Murphy, J.—Summary Judgment.) Present—Pine, J. P., Lawton, Callahan, Doerr and Davis, JJ.