Matter of New York Asbestos Litig. (2020)

Our plain-English summary of Matter of New York Asbestos Litig. (New York Supreme Court, Appellate Division, February 27, 2020).

The family of a woman who died of mesothelioma sued several companies, including Mario & DiBono Plastering Co., Inc. They claimed she was exposed to asbestos that her husband brought home from his jobsite. Mario & DiBono moved for summary judgment to dismiss the complaint and all cross claims against it. The trial court in New York County denied the motion, and the company appealed. The Appellate Division, First Department, unanimously affirmed. It held that the company had not met its initial burden of showing that the woman could not have been exposed to its spray-on fireproofing products or the asbestos in them. The plaintiffs' interrogatory responses had not listed spray-on fireproofing among possible sources, but the husband mentioned it at his deposition. His testimony was not entirely clear, but the court said the apparent inconsistencies raised credibility issues that could not be resolved on summary judgment. The case continues against the company.

We wrote this summary from the court's opinion with the help of AI. It is not the court's wording, and it is not legal advice. The full opinion is below.

The decision

• Court: New York Supreme Court, Appellate Division, 1st Dept.
• Decided: February 27, 2020
• Citation: 180 A.D.3d 620
• Stage: Appeal from summary judgment
• State: New York

Outcome. The appellate court affirmed the denial of Mario & DiBono Plastering Co.'s motion for summary judgment, so the plaintiffs' claims against it continue.

What the court held. A defendant seeking summary judgment must first show that the decedent could not have been exposed to its products or their asbestos. Apparent inconsistencies in a witness's testimony raise credibility issues that cannot be resolved on summary judgment.

Issues decided: Trial Procedure and Discovery, Product Identification, Take-Home Exposure.

The people and their exposure

• Plaintiffs' decedent (wife of the worker; spouse of Elvis Licul is not stated) (family member): mesothelioma; died

The defendants

• Mario & DiBono Plastering Co., Inc. (contractor)
• A.O. Smith Water Products Co.

The court's opinion

The text below is Google Scholar's copy of the court's opinion, a public record. Numbers in brackets, such as [*921], mark where each page of the printed reporter begins.

180 A.D.3d 620 (2020)

116 N.Y.S.3d 900

2020 NY Slip Op 01392

In the Matter of New York Asbestos Litigation.

Elvis Licul et al., Respondents,

v.

A.O. Smith Water Products Co. etal., Defendants, and

Mario & DiBono Plastering Co., Inc., Appellant.

Decided February 27, 2020.

Appellate Division of the Supreme Court of New York, First Department.

Order, Supreme Court, New York County (Manuel J. Mendez, J.), entered on or about March 18, 2019, which denied the motion of defendant Mario & DiBono Plastering Co., Inc. for summary judgment dismissing the complaint and all cross claims as against it, unanimously affirmed, without costs.

Concur—Manzanet-Daniels, J.P., Kapnick, Gesmer, Oing, JJ.

[*621] Plaintiffs' decedent died of mesothelioma allegedly caused by exposure to asbestos brought home by her husband from his jobsite. Defendant failed to meet its prima facie burden of establishing that decedent "could not have been exposed to its [spray-on fireproofing] products or the asbestos contained therein" (see Matter of New York City Asbestos Litig., 146 AD3d 700, 700 [1st Dept 2017]). Although plaintiffs' interrogatory responses did not mention spray-on fireproofing in their nonexhaustive list of possible exposure sources, decedent's husband did mention this at his deposition. While the husband's testimony is not entirely clear, his apparent inconsistencies merely create credibility issues that cannot be resolved at the summary judgment stage (see Latif v Eugene Smilovic Hous. Dev. Fund Co., Inc., 147 AD3d 507, 508 [1st Dept 2017]).

Sources

• The opinion on Google Scholar
• New York asbestos laws
• New York asbestos exposure sites