Jurisdiction: Supreme Court of New York, New York County

DAP filed a motion for summary judgment by arguing plaintiff cannot sufficiently demonstrate DAP’s exposed him to asbestos. DAP contends that it did not manufacture or sell any product that resembles the product described by plaintiff. Thus, according to DAP, plaintiff cannot establish that he was exposed to asbestosfrom its products. In support, DAP proffers, inter alia, two affidavits of Mr. Ward Treat, who contends that DAP did not manufacture, sell, or supply the products described by plaintiff.

Plaintiff opposed arguing issues of fact exist as plaintiff testified that he worked with asbestos-containing DAP products – specifically joint compound – as found in deposition transcripts. Plaintiff also notes that DAP offers no evidence proving that its products could not have caused asbestos–related illness.

The court noted 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 NY2d 320, 324, 501 N.E.2d 572, 508 N.Y.S.2d 923 (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 NY2d 851, 853, 476 N.E.2d 642, 487 N.Y.S.2d 316 (1985). 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 AD2d 462, 463, 622 N.Y.S.2d 946 (1st Dep’t 1995).

Pursuant to CPLR § 3212(b), “[a] motion for summary judgment shall be supported by affidavit. . . by a person having knowledge of the facts”.

“A conclusory affidavit or an affidavit by an individual without personal knowledge of the facts does not establish the proponent’s prima facie burden”. JMD Holding Corp. v. Congress Fin. Corp., 4 NY3d 373, 384-85, 828 N.E.2d 604, 795 N.Y.S.2d 502 (2005). The First Department, Appellate Division has held “that affidavits devoid of evidentiary facts and consisting of mere conclusions, speculation and unsupported allegations are insufficient to defeat a motion for summary relief”. Castro New York Univ., 5 AD3d 135, 136, 773 N.Y.S.2d 29 (1st Dept 2004) (internal citations omitted).

 In the case at bar, the court found the two affidavits from Treat on which DAP relies were conclusory and speculative. These affidavits attempt to establish DAP’s products did not contain asbestos by the end of 1978. Treat only supports this contention by stating “he acquired this knowledge about DAP’s products throughout his employment” and that he has personal knowledge of the facts set forth herein. However, Treat’s affidavits fail to assert, with any specificity, the information he has acquired through his personal knowledge or experiences with DAP. The court therefore held Treat’s conclusory statements regarding DAP products are insufficient to establish entitlement to summary judgment absent any supporting statements or documents as to how he obtained such knowledge.

Read the full decision here.