Supreme Court of New York, New York County (NYCAL)

In this asbestos action, plaintiff Thomas Bassier alleged that he suffered injury as a result of exposure to asbestos-containing products manufactured by various companies during his time employed as an electrician. In response, one of the defendants, Burnham, LLC, filed a motion for summary judgment arguing that the plaintiff failed to establish exposure to any alleged asbestos-containing products manufactured by Burnham.

To succeed on summary judgment, a moving defendant must “affirmatively prove, as a matter of law, that there was no causation,” rather than just arguing that “plaintiff could not affirmatively prove causation.” Dyer v. Amchem Products Inc., 171 N.Y.S.3d 498 (1st Dep’t 2022). This standard was recently affirmed in Saso v. Dykes Lumber Co., Inc., et al, 199 N.Y.S3d 56, 2023 NYSlipOp 05796 (1st Dep’t 2023), which stated that “the parties’ competing causation evidence constituted the classic ‘battle of the experts’ sufficient to raise a question of fact, and to preclude summary judgment.”

In the instant matter, the plaintiff worked at Hamilton Heating & AC from 1981 to 1984, where his work consisted of removing existing residential boilers. While the plaintiff specifically identified Burnham Boilers as an asbestos-containing product that he worked with at Hamilton in his Answers to Interrogatories, he failed to identify “Burnham” during his discovery deposition. Rather, when asked if he knew the brand name, trade name, or manufacturer name of the boilers he removed during his time at Hamilton, the plaintiff answered “Burningham.”

In response to the above, the court noted that “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 only goes to the weight and not the admissibility of the testimony.” Additionally, the court found that Burnham made no attempt to meet their initial burden on a motion for summary judgment by proving that their products did not contain asbestos. For these reasons, the court determined that a reasonable juror could determine that the plaintiff was exposed to asbestos-containing boilers manufactured by Burnham, and that such exposure could have contributed to his injury. Thus, sufficient issues of fact existed to preclude summary judgment, and Burnham’s motion was denied in its entirety.

Read the full decision here.