Court: Supreme Court of New York, New York County

In this asbestos action, decedent Jose Munoz alleged that he was exposed to asbestos from caulk and plaster manufactured by defendant DAP.

DAP moved for summary judgment, arguing that “not all DAP caulks historically contained asbestos, no DAP plaster product contained asbestos, and that plaintiff’s causation for mesothelioma is insufficient.” In support of its motion, DAP submitted affidavits from a DAP former employee and a certified industrial hygienist. Plaintiff opposed DAP’s motion, citing plaintiff’s testimony identifying DAP products, as well as its expert evidence as to causation.

With regard to the motion for summary judgment, the court first 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.” Further, “summary judgment is rarely granted in negligence actions unless there is no conflict at all in the evidence.” Thereafter, the court explained that Dyer v. Amchem is the appropriate standard for summary judgment in New York. In Dyer, the defendants met their burden “by affirmatively prov[ing], as a matter of law, that there was no causation.”

Here, the court found both affidavits submitted by DAP to be insufficient. With regard to the former employee affidavit, the court set forth that the former employee “does not possess the requisite personal knowledge to establish that no DAP products containing asbestos were in circulation and used by Mr. Munoz.”

The court further explained that “the affidavit fails to address DAP plaster, and rather, it confirms that some formulations of DAP caulk contained asbestos.” In addition, the court found the certified industrial hygienist affidavit to be insufficient as the affidavit “is not case-specific and forms no opinions based on Mr. Munoz’s actual exposure and work timeline.” The court determined that a reasonable juror could find that asbestos exposure DAP products were a contributing cause of plaintiff’s illness. Thus, the court denied the motion. 

Read the full decision here