Court: Supreme Court of New York, New York County

In this asbestos action, decedent Anthony Morale alleged he was exposed to asbestos from boilers manufactured by defendant Fulton Boiler Works. Fulton moved for summary judgment, arguing it could not have caused or contributed to plaintiff’s injury. In support, Fulton proffered a corporate representative affidavit “to indicate that Fulton boilers did not require the type of servicing/assembly noted in [Morale’s] testimony and were not sold for use in the environments of Morale’s exposure.” Plaintiff opposed Fulton’s motion, citing his testimony identifying Fulton boilers in his work from the late 1940s to the 1980s.

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 that Morale clearly identified Fulton’s product even though he was suffering from cancer when he was deposed and passed away within the same year. In addition, the court cited the conflicting evidence submitted by the parties:

[w]hile [the corporate representative’s] affidavit provides sufficient detail to establish moving defendant’s prima facie case, [Morale] presents clear contradicting testimony. The weight of such testimony remains an issue for the trier of fact and not one for summary judgment. As conflicting evidence has been presented herein, and a reasonable juror could decide that Morale was exposed to asbestos from his work with Fulton boilers in various contexts, and that such exposure could have contributed to his fatal illness, sufficient issues of fact exist to preclude summary judgment.

Thus, the court denied the motion.

Read the full decision here.