Jurisdiction: Supreme Court of New York, New York County
Defendant Kennedy Electrical Supply Corp. moved for summary judgment seeking to dismiss this action on the grounds that plaintiff was not exposed to asbestos from any Kennedy products during his employment with Con Edison from 1963 through 2005.
Specifically, Kennedy argued that because plaintiff recanted his identification of Kennedy as an asbestos-containing product during his deposition, plaintiff could not establish causation. Plaintiff opposed, arguing that Kennedy failed to meet their prima facie burden on causation that exposure to Kennedy’s products could not have resulted in plaintiff’s diagnosis of lung cancer.
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 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).
“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 AD2d 579, 580, 580 N.Y.S.2d 294 (1st Dep’t 1992), citing Dauman Displays. Inc. v Masturzo, 168 AD2d 204, 562 N.Y.S.2d 89 (1st Dep’t 1990). With respect to plaintiff’s deposition testimony, the Appellate Division, First Department, has held that “[t]he deposition testimony of a litigant is sufficient to raise an issue of fact so as to preclude the grant of summary judgment dismissing the complaint. The assessment of the value of a witnesses’ testimony constitutes an issue for resolution by the trier of fact, and any apparent discrepancy between the testimony and the evidence of record goes only to the weight and not the admissibility of the testimony.” Dollas v W. R. Grace and Co., 225 AD2d 319, 321, 639 N.Y.S.2d 323 (1st Dep’t 1996).
The court found Kennedy failed to affirmatively establish that plaintiff’s alleged exposure to asbestos from Kennedy products could not have contributed to plaintiff’s illness, but rather pointed to gaps in plaintiff’s proof. Plaintiff argued, and the court agreed, an issue of fact existed as to whether plaintiff merely misidentified Kennedy as a supplier of wire and cable specifically, rather than all asbestos products. Thus, the court held a reasonable juror could determine that asbestos exposure from Kennedy’s products was a contributing cause of plaintiff’s lung cancer therefore, sufficient issues of fact existed to preclude summary judgment.
Read the full decision here.
