Jurisdiction: Supreme Court of New York, New York County
Defendant Atwood & Morrill Co. Inc. moved for summary judgment to dismiss this action on the grounds that plaintiff Giuseppe Rullo was not exposed to asbestos-containing pumps manufactured by Atwood during the course of his work at Con Ed from 1969 to 1979.
Specifically, defendant’s motion rested upon challenging plaintiffs’ evidence implicating defendant Atwood as a manufacturer of asbestos-containing pumps. Defendant argues that it only manufactured valves, not pumps. Plaintiffs opposed the motion on the basis of depositions held in other asbestos-related matters in which Atwood valves were identified at Con Ed powerhouses, including those locations where Rullo specifically worked. Defendant reiterated their argument that Rullo did not identify Atwood valves, rather plaintiff identified pumps, and that the other depositions should not be considered.
“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). Additionally, summary judgment motions should be denied if the opposing party presents admissible evidence establishing that there is a genuine issue of fact remaining. See Zuckerman v City of New York, 49 NY2d 557, 560, 404 N.E.2d 718, 427 N.Y.S.2d 595 (1980). The appropriate standard at summary judgment for moving defendant Atwood can be found in Dyer v Amchem Products Inc., 207 AD3d 408, 409, 171 N.Y.S.3d 498 (1st Dept 2022). In Dyer, defendants were granted summary judgment not by “simply argu[ing] that plaintiff could not affirmatively prove causation” but by “affirmatively prov[ing], as a matter of law, that there was no causation.” Id.
Here, the court found that plaintiff provided clear and unequivocal details regarding his work history from approximately 50 years ago, including the locations of powerhouses he worked at, what his role was, and which specific categories of products he was exposed to. Defendant’s “contention rested on evidence of plaintiff’s inability to remember precisely when he worked at the facility” and stated that “pointing to gaps in an opponent’s evidence is insufficient to demonstrate a movant’s entitlement to summary judgment”.
The First Department noted in Krok v AERCTO International, Inc., et. al, 146 AD3d 700, 700 (1st Dep’t 2017) that “reliance on the decedent’s inability to identify its product as a source of his exposure to asbestos is misplaced”. The court, therefore, held that Atwood made no attempt to meet its initial burden on a motion for summary judgment by proving that their products were not located at any of Rullo’s worksites or that they did not contain asbestos. Thus, Atwood failed to “establish that its products could not have contributed to the causation of plaintiffs injury” and the court denied the motion.
Read the full decision here.
