Supreme Court of New York, Suffolk County, June 6, 2022

Plaintiffs Lisa and Edward Gavin filed a lawsuit to recover damages for the injuries Lisa allegedly sustained as a result of exposure to asbestos-containing products manufactured or sold by defendants during her employment with Courter and Company from 1978 to 1980.

Defendant Sterling Fluid Systems LLC (USA), moved for summary judgment dismissing the complaint against it, arguing that the plaintiff did not allege asbestos exposure from its pumps, and that there was no evidence that the plaintiff encountered or was exposed to asbestos from its pumps. The plaintiffs opposed the motion, arguing that testimony of other tradesmen working contemporaneously with the plaintiff at the facility identified the pumps manufactured by Sterling.

In order to establish its entitlement to summary judgment, a defendant must make a prima facie showing that its products could not have contributed to the causation of the plaintiff’s injury (see Matter of New York City Asbestos Litigation, 216 AD2d 79, 628 NYS2d 72 [1st Dept 1995]; Reid v. Georgia-Pacific Corp., 212 AD2d 462, 622 NYS2d 946 [1st Dept 1995]). If this burden is met, the plaintiff must then allege facts and conditions from which the defendant’s liability may reasonably be inferred, that is, that the plaintiff worked in the vicinity where the defendant’s products were used and that the plaintiff was exposed to the defendant’s products (see Matter of New York City Asbestos Litigation, supra; Scheidel v. A.C. and S. Inc., 258 AD2d 751, 685 N.Y.S.2d 829 [3d Dept 1999]; see also Healey v Firestone Tire & Rubber Co., 87 NY2d 596, 663 N.E.2d 901, 640 NYS2d 860 [1996]).

The court noted that the testimony of both plaintiffs and the responses to the interrogatories did not identify Sterling as a manufacturer of an asbestos-containing product to which the plaintiff was exposed. Additionally, thecourt found that testimony of the nonparty witness relied upon by the plaintiffs which identified the manufacturer’s pumps at the facility was not admissible. (see McDonald v Mauss, 38 AD3d 727, 832 NYS2d 291 [2d Dept 2007]; Santos v. Intown Assocs., 17 AD3d 564, 793 NYS2d 477 [2d Dept 2005]). Finally, the court found that it was insufficient for the plaintiffs to show that equipment made by Sterling was installed at the facility. Rather, it must be shown that the plaintiff herself was exposed to asbestos from such equipment (see Diel v. Flintkote Co., 204 AD2d 53,611 NYS2d 519 [1st Dept 1994]; Cawein v. Flintkote Co., 203 AD2d 105, 610 NYS2d 487 [1st Dept 1994]).

Accordingly, Sterling’s summary judgment motion was granted.

Read the full decision here.