Court: Supreme Court of New York, New York County

In this asbestos action, decedent Christopher Yohe alleged exposure to asbestos from Bradford White water heaters while working as a plumber from the 1980s to the 2000s. Bradford White moved for summary judgment, arguing the water-heater parts identified by Yohe did not contain asbestos. Bradford White submitted an affidavit in support of its motion. Plaintiff opposed this motion on the grounds that Bradford White’s affidavit was insufficient to meet Bradford White’s burden. In addition, Bradford White did not deny that its water heaters historically contained asbestos.

Ultimately, the court denied Bradford White’s motion. Under New York summary judgment case law, “[t]he 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”. The court also stated that “[d]espite the sufficiency of the opposing papers, the failure to make such a showing requires denial of the motion.” Further, “[t]he deposition testimony of a litigant is sufficient to raise an issue of fact so as to preclude the grant of summary judgment dismissing the complaint.”

The court first noted Yohe’s “unequivocal testimony” as to the parts of Bradford White’s older water heaters that contained asbestos, as well as Yohe’s training in identifying asbestos-containing materials. With regard to Bradford White’s affidavit, the court found that the affiant did not have personal knowledge of the relevant time period. The affiant also did not have a background in manufacturing, nor did the affiant cite any documentary evidence reviewed in connection with the affidavit.

Instead, the affidavit set forth the affiant’s familiarity with the historical product. However, the court found the affidavit “insufficient to establish with certainty that historical Bradford White water heaters did not contain asbestos, and that any asbestos containing Bradford White parts could not have been encountered by Mr. Yohe.”  As such, the court found that issues of fact existed as to whether Yohe was exposed to asbestos from a Bradford White water heater. Thus, the court denied Bradford White’s motion for summary judgment.

Read the full decision here.