Supreme Court of New York, New York County

In two asbestos actions (Avakian and Layton), defendant Mannington Mills moved to renew its summary judgment motion. Mannington contends that there was a subsequent change in the law that necessitates reversal of the court’s previous denial of two summary judgment motions. Mannington argues that the plaintiff’s expert failed to quantify the respective plaintiff’s asbestos exposure. Mannington also argues that the court failed to require the expert to set forth a specific quantification of the amount of asbestos exposure. In support, Mannington cites the Court of Appeals’ decision in Nemeth v. Brenntag N. Am. and subsequent related decisions. 

In opposition, the plaintiff contends that Mannington failed to submit any specific causation expert opinion from a medical expert witness. The plaintiff also set forth that “Mannington’s expert makes no unequivocal statements about the risk of lung cancer at low doses of exposure and acknowledges that research is varied on the risk at low cumulative exposure.”

The court ultimately found that Mannington failed to meet its burden under CPLR 2221(e). A party may “move for leave to renew a decision to assert “new facts not offered on the prior motion that would change the prior determination or … demonstrate that there has been a change in the law that would change the prior determination.” Here, the court found that Mannington’s argument with regard to Nemeth was misplaced as Nemeth “represents an extraordinary post-trial remedy to set aside a jury verdict, rather than the well-settled burden on a motion for summary judgment.” Instead, Dyer v. Amchem is the appropriate standard for summary judgment in New York. The court explained that the defendants met their burden in Dyer “by affirmatively prov[ing], as a matter of law, that there was no causation.” Here, the court found that the plaintiff raised issues of fact in their opposition papers by providing “clear and unequivocal expert testimony regarding exposure history to Mannington products, the level of asbestos fibers at issue, and an opinion on causation based on cumulative exposure thereto.” In addition, “Plaintiff’s supplemental expert report further addresses the concentration of asbestos fibers at issue pursuant to the updated case law, but is unnecessary to the instant motion.” Therefore, Mannington did not show any new laws that would have changed the outcome of the initial motion. Further, Mannington failed to meet the Dyer standard. Thus, the court denied the motions to reargue.

Read the full decisions here and here