Court: Supreme Court of New York, New York County
Defendant Milton Roy LLC filed a motion for summary judgment on the grounds that the plaintiff failed to identify Milton Roy as a manufacturer of any asbestos-containing products to which he was exposed during his employment with Con Edison between the 1970s and 1990s. In support of its motion, Milton Roy provided an affidavit from its corporate representative, which confirmed that none of the pumps at the plaintiff’s jobsites utilized asbestos-containing gaskets or other components.
In opposition, the plaintiff relied upon testimony identifying Milton Roy pumps at his jobsites, portions of Milton Roy documents indicating the use of asbestos-containing pumps and mentioning Milton Roy’s responsibility for asbestos-containing replacement parts.
The court first reviewed the plaintiff’s deposition testimony, which “provided clear and unequivocal details regarding his work history from approximately forty-five years ago, including the locations of powerhouses he worked at, what his role was, and which specific categories of products he was exposed to.” The court cited Koulermos v. A.O. Smith Water Prods., where the Appellate Division, First Department, denied summary judgment and noted that the defendant’s “contention rested on evidence of plaintiff’s inability to remember precisely when he worked at the facility” and that “pointing to gaps in an opponent’s evidence is insufficient to demonstrate a movant’s entitlement to summary judgment.” Additionally, in Krokv AERCTO International, Inc., et al., the First Department stated “reliance on the decedent’s inability to identify its product as a source of his exposure to asbestos is misplaced” and that “plaintiffs raised an issue of fact by submitting evidence that defendant’s asbestos-containing pumps were present on the ship to which the decedent was assigned as a boiler tender fireman.”
Because there was an issue of fact with respect to Milton Roy’s products, the court denied the motion for summary judgment.
Read the full decision here.
