Jurisdiction: Supreme Court of New York, New York County

This action was filed on behalf of decedent, Kenneth Last, alleging he was exposed to asbestos while working for general contractor, ALCOA Inc., n/k/a ARCONIC Inc., at the World Trade Center during the 1970s. ALCOA filed a motion for summary judgment arguing the fire-proofing material used at the World Trade Center during decedent’s employment was non-asbestos containing.

The court notes that summary judgment is a drastic remedy and should only be granted if the moving party has sufficiently established it is warranted as a matter of law. See Alvarez v Prospect Hasp., 68 NY2d 320, 324 (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). Despite the sufficiency of the opposing papers, the failure to make such a showing requires denial of the motion. See id. at 853. Additionally, summary judgment motions should be denied if the opposing party presents admissible evidence establishing 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). “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 (Pt Dep’t 1992), citing Dauman Displays, Inc. v Masturzo, 168 AD2d 204, 562 N.Y.S.2d 89 (Pt Dep’t 1990).

The court held here that ALCOA’s reliance on a memo from 1970 from the construction manager of the World Trade Center discussing contracts and use of asbestos fire-proofing spray, indicating that an agreement was reached between the construction manager and contractors regarding the costs necessary to switch over to asbestos-free fire-proofing spray, was not dispositive of the question as to Last’s alleged exposure to asbestos at that job site.

Furthermore, plaintiffs raised a question of fact as to the extent of asbestos-containing material in use at the World Trade Center post-1970, its proximity to Last’s work, and whether defendant ALCOA had notice of, or created, the dangerous condition.

Accordingly, ALCOA’s motion was denied.

Read the full decision here.