Jurisdiction: Supreme Court of New York, New York County

Plaintiff Robert L. Toth worked at various Consolidated Edison powerhouses from 1961 to 1991 as a sheet metal worker. He was diagnosed with lung cancer in 2019 and he alleged his illness was the result of asbestos exposure. He brought suit against numerous pump, valve, and gasket companies amongst other industrial manufacturers. Defendants Crosby Valve LLC and Milton Roy Company — (collectively “defendants”) — both moved for summary judgment. They argued plaintiff failed to identify either as a manufacturer of asbestos-containing products to which he was exposed during his employment at Con Ed.

Both Crosby and Milton Roy challenged plaintiff’s evidence implicating them as manufacturers causing his exposure. Plaintiff opposed these motions and pointed to external depositions where previous witnesses had identified both defendants at the Con Ed locations where plaintiff worked. Nevertheless, defendants contended that plaintiff failed to identify their respective companies in his own testimony. They further contended the court should not consider external depositions and reiterated plaintiff lacked sufficient detail to connect his illness to their products.

The court noted summary judgment is a drastic remedy and should only be granted in the event the moving party sufficiently establishes it is warranted as a matter of law.  See Alvarez v. Prospect Hosp., 58 NY2d 320, 324 (1986).  Critically, “The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgement 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 NY2d 851, 853 (1985).  Moreover, “Despite the sufficiency of the opposing papers, the failure to make such a showing requires denial of the motion.”  Wingrad, 64 NY2d at 853.

The court pointed to Dyer v. Amchem Products Inc., where defendants “affirmatively proved, as a matter of law, that there was no causation,” as opposed to “simply argu[ing] that plaintiff could not affirmatively prove causation.”  207 AD3d 408, 409 (1st Dept. 2022). It then differentiated Dyer from the case at bar and found that “pointing to gaps in an opponent’s evidence is insufficient to demonstrate a movant’s entitlement to summary judgment.”  Koulermos v. A.O. Smith Water Prods., 137 AD3d 575, 576 (1st Dept. 2016). Concerning Crosby, the court found Crosby failed to meet its initial burden by proving their products were not present at any of plaintiff’s worksites and that they did not contain asbestos. As such, Crosby failed to establish its products could not have contributed to the causation of plaintiff’s injuries and the court denied its motion.

Milton Roy, on the other hand, proffered an affidavit from a corporate representative to indicate the varieties of pumps shipped to Con Ed did not utilize asbestos-containing gaskets or other parts. Nevertheless, the court determined this evidence was insufficient to succeed on summary judgment as well. The court set forth that “[w]hile Mr. Carling’s affidavit provides sufficient detail to establish a moving defendant’s prima facie case, plaintiff presents contradicting evidence” by way of non-party testimony and documentary evidence regarding the defendant’s products. Thus, the court also denied Milton Roy’s motion for summary judgment.

Read the Toth v. Amchem Prods. decision here.

Read the full decision here and here.