Lefrak v. American Biltrite (Matter of New York City Asbestos Litig., 2015)

Our plain-English summary of Matter of New York City Asbestos Litig. (New York Supreme Court, April 10, 2015).

Richard Lefrak was diagnosed with mesothelioma and pleural asbestosis in 2013. He sued several companies, claiming his disease came from asbestos in joint compound and floor tiles at Stony Brook University, where he was a student from 1965 to 1969 and also worked cleaning up dust. American Biltrite was alleged to have made and sold Amtico asbestos-containing vinyl tiles used in construction there, and it was undisputed that it sold such tiles to the school during that period. American Biltrite asked the court for summary judgment, arguing Lefrak could not show he was exposed to its tiles. The court denied the motion. It held that the company, as the moving party, had to make its own showing first, and it submitted no affidavit or deposition testimony. Its own brief conceded that a carpenter's testimony raised the possibility that Amtico tiles were used on campus. Even if it had met its burden, the carpenter's testimony that he saw Amtico tiles installed and cut, and that his time there overlapped with Lefrak's, raised factual issues for a jury.

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
• Decided: April 10, 2015
• Citation: 2015 NY Slip Op 30530
• Docket: Docket No. 190033/2014
• Stage: Summary judgment
• State: New York

Outcome. The court denied defendant American Biltrite's motion for summary judgment, so plaintiff Richard Lefrak's claims against it continue.

What the court held. A defendant moving for summary judgment in an asbestos case must first establish prima facie that its product could not have contributed to the plaintiff's injury; absent that, the motion is denied, and witness credibility and conflicting testimony are for the jury.

Issues decided: Trial Procedure and Discovery, Product Identification.

The people and their exposure

• Richard Lefrak: mesothelioma, asbestosis

Who	Work	Where	When	Products
Richard Lefrak	student and janitor (construction); worked near others using it	Stony Brook University, New York	1965-1969	floor tile, joint compound, Amtico vinyl tiles (American Biltrite)

The defendants

• American Biltrite, Inc. (manufacturer)

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Berensmann v. Georgia-Pacific (Matter of New York City Asbestos Litig.) (New York Supreme Court, Appellate Division, 1st Dept., 2014). The appellate court dismissed the claims about Georgia-Pacific's wallboards because it never made asbestos wallboard, but otherwise affirmed the denial of Georgia-Pacific's summary judgment motion, so plaintiffs' joint compound claims proceed.
• DiSalvo v. Neles-Jamesbury (Matter of New York City Asbestos Litigation) (New York Supreme Court, Appellate Division, 1st Dept., 2014). The Appellate Division affirmed the denial of summary judgment to Neles-Jamesbury, Inc., holding it had not met its initial burden, so plaintiff Carl DiSalvo prevailed on the appeal.
• Root v. Eastern Refractories Co., Inc. (New York Supreme Court, Appellate Division, 4th Dept., 2004). The Appellate Division reversed the order granting summary judgment to Eastern Refractories Co., denied the motion, and reinstated the executor's complaint against Eastern.
• Dollas v. WR Grace & Co. (New York Supreme Court, Appellate Division, 1st Dept., 1996). The Appellate Division reversed the grants of summary judgment to W.R. Grace against plaintiffs Dollas and Gargano, finding a fact question on whether the decedents were exposed to Grace's Monokote.
• Reid v. Georgia-Pac. Corp. (New York Supreme Court, Appellate Division, 1st Dept., 1995). The Appellate Division affirmed the denial of Rapid-American Corporation's motion for summary judgment, so plaintiff Kenneth Reid's claim against it continues.

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.

2015 NY Slip Op 30530(U)

IN RE NEW YORK CITY ASBESTOS LITIGATION.

RICHARD R. LEFRAK Plaintiff,

v.

AERCO INTERNATIONAL, INC. etal Defendants.

Docket No. 190033/2014.

April 10, 2015.

Supreme Court, New York County.

PETER H. MOULTON, Judge.

Plaintiff Richard Lefrak ("plaintiff') was diagnosed with mesothelioma and underlying pleural asbestosis in June of 2013. His disease, he claims, is connected to his asbestos exposure from joint compound and floor tiles, as a student and also as a janitor sweeping up dust at Stony Brook University ("Stony Brook") where he went to college from 1965 to 1969. Defendant American Biltrite, Inc. ("defendant" or "AB") is alleged to have manufactured and sold Amtico asbestos-containing vinyl tiles to Stony Brook that were used during various construction projects during the relevant period of time. It is undisputed that during the relevant period of time, AB sold Amtico asbestos-containing vinyl tiles (Exh 4, Plaintiff's Affirm in Opp). AB moves, pursuant to CPLR 3212, for summary judgment dismissing plaintiff's complaint and all claims and cross claims against it. AB's memorandum of law states that the basis for the motion is "that plaintiff, Richard Lefrak, has failed to establish a prima facie case against ABI and no genuine issues of material fact exists which support this action against ABI" (Defendant's Mem of Law at 2). This of course is the incorrect standard, as the moving party (here, AB) must establish a prima facie case. Tellingly, even AB's memorandum of law reflects that defendant cannot meet its burden by conceding that, at a minimum, "Mr. Galasso's testimony merely raises the possibility that Amtico tiles were used at Stony Brook when Mr. Galasso was present there" (id.).

Arguments

AB contends that plaintiff has not shown that he specifically came into contact with absestos-containing floor tiles that AB manufactured and sold, namely Amtico floor tiles. AB points out that plaintiff himself did not identify Amtico floor tiles during the course of his deposition. Defendant asserts that the deficiencies in plaintiff's evidence were not cured by fact witness George Salzman, a concrete worker at Stony Brook from 1966-1970, who, as defendant correctly points out, was not mentioned in plaintiff's opposition papers. Defendant stresses that Salzman recalled numerous brands of floor tile being used at the school — none of which included Amtico. AB further argues that plaintiff cannot rely on the "irrelevant" testimony of Joseph Galasso, a union carpenter working at Stony Brook from 1968-1972. Galasso specifically identified Amtico asbestos-containing floor tiles at Stony Brook. Plaintiff opposes the motion, pointing out the following testimony: —Plaintiff stated at his deposition that as a student, he was frequently around the laying and cutting of vinyl tiles all over the Stony Brook campus throughout his four years there (Ex 2, Plaintiff's Affirm in Opp, Lefrak TR at 35-38, 50-51, 358-60). —Plaintiff submits that he specifically recalled that numerous buildings on the campus underwent

construction while he was a student, including the library and the earth and space science building, and that construction work was "everywhere" (id. at 50-51)

—During the summer of 1968, plaintiff worked all over Stony Brook's campus cleaning up various

construction projects. Specifically, in his deposition testimony he recalled cleaning up after floor tile workers, and that such work often involved exposure to considerable dust (id. at 56-58; 357-361).

— Galasso states that while he was on Stony Brook's campus, he was around to witness others install

Amtico floor tiles "generally" around the campus (Ex 3, Plaintiff's Affirm. in Opp., Galasso TR at 66).

-Glasso further recalled that Amtico tiles were cut, creating dust, and that such tiles contained asbestos (id. at 1201-1214).

Discussion

CPLR 3212 (b) provides, in relevant part:

A motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other

available proof, such as depositions and written admissions. The affidavit shall be by a person having

knowledge of the facts; it shall recite all the material facts; and it shall show that there is no defense to the cause of action or that the cause of action or defense has no merit. The motion shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party. Except as provided in subdivision (c) of this rule the motion shall be denied if any party shall show facts sufficient to require a trial of any issue of fact.

Thus, a defendant moving for summary judgment must first establish its prima facie entitlement to judgment as a matter of law by demonstrating the absence of material issues of fact (see Vega v Restani Constr. Corp., 18 NY3d 499 [2012]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Therefore, summary judgment in defendant's favor is denied when defendant fails "to unequivocally establish that its product could not have contributed to the causation of plaintiff's injury" (Reid v Georgia-Pacific Corp., 212 AD2d 462, 463 [1st Dept 1995]; Matter of New York City Asbestos Litig. (Berensmann), 122 AD3d 520 [1st Dept 2014]). An affidavit from a corporate representative which is "conclusory and without specific factual basis" does not meet the burden (Matter of New York City Asbestos Litig. (DiSalvo), 123 AD3d 498 [1st Dept 2014]). By contrast, in Root v Eastern Refractories, Co. (13 AD3d 1187 [1st Dept 2004]), an affidavit from a corporate employee who worked for the defendant since 1948, which stated that the company did not supply any asbestos-containing products to Syracuse University during the relevant time, is sufficient to meet the burden of proof. It is only after the burden of proof is met that plaintiff must then show "facts and conditions from which the defendant's liability may be reasonably inferred" (Reid, 212 AD2d at 463, supra). The plaintiff cannot, however, rely on conjecture or speculation (see Roimesher v Colgate Scaffolding & Equip. Corp., 77 AD3d 425, 426 [1st Dept 2010]). Nor can a plaintiff rely upon the affirmation of counsel to fill in a crucial gap regarding how the plaintiff was exposed (see Matter of Asbestos Litigation (Comeau), 216 AD2d 79 [1st Dept 1995] [counsel stated that the deceased plaintiff metal lather must "necessarily [have] scraped. . . W.R. Grace asbestos containing fireproofing. . . in order to perform his job"]). To defeat summary judgment, a plaintiff's evidence must create a reasonable inference that plaintiff was exposed to a specific defendant's product (see Comeau v. W.R. Grace & Co.-Conn), 216 AD2d 79 [1st Dept. 1995]).

In addition, issues of credibility are for the jury (Cochrane v Owens-Corning Fiberglass Corp., 219 AD2d 557, 559-60). Where "[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. . . [t]he assessment of the value of a witnesses' testimony constitutes an issue for resolution by the trier fact, and any apparent discrepancy between the testimony and the evidence of the record goes only to the weight and not the admissibility of the testimony" (Dollas v. Grace & Co., 225 AD2d 319, 321 [1st Dept. 1996] [internal citations omitted]). This is particularly true in asbestos cases, like that in Dollas, where the testimony presented is often proffered by witnesses attempting to recall remote events that are years and perhaps even decades removed from the present. Furthermore, it is well-settled that in personal injury litigation, a plaintiff is not required to show the precise cause of his damages, but only facts and conditions from which a defendant's liability can be reasonably inferred (Reid, supra; Matter of New York City Asbestos Litg. (Brooklyn Nav. Shipyard Cases), 188 AD2d 214, 225 [1st Dept], affd 82 NY2d 821 [1993]). AB has failed to establish a prima facie case. No affidavit was proffered in support of the motion. Nor did AB cite to any deposition testimony which would support a prima facie case. AB's memorandum of law reflects that defendant cannot meet its burden.[1] AB concedes that, at a minimum, "Mr. Galasso's testimony merely raises the possibility that Amtico tiles were used at Stony Brook when Mr. Galasso was present there" (Defendant's Mem of Law at 2). Moreover, even if AB met its burden, issues of fact exist for trial. AB admits in reply that Galasso's presence at Stony Brook overlapped with plaintiff in 1968 and 1969 (Galasso having worked on campus from 1968-1972). AB attempts to minimize the temporal overlap, asserting that "the relevant time frame is only 1972" because Galasso maintained a note book that referred to one project at Stony Brook in 1972. Defendant also attempts to minimize Galasso's testimony because he did not specify exactly where he

performed ceiling work on the "massive" Stony Brook campus. Defendant also stresses that plaintiff was a student, whereas Galasso was a construction worker who performed work at Stony Brook "off and on." Defendant also mischaracterizes Galasso's testimony by asserting that he did not testify that he saw an AB package labeled Amtico. In fact, Galasso did testify that he saw the word Amtico on a box, although he could not recall the fonts or whether it was written in script or bold (Exh 3, Plaintiff's Affirm In Opp, Galasso TR at 1210-1213). AB's attempts to minimize plaintiff's, Salzman's and Galassso's testimony presents an issue of fact for the jury to address.[2]

It is hereby

ORDERED that Defendant's motion is denied.

This constitutes the Decision and Order of the Court.

[1] At oral argument, defendant asserted that it is "not fair" to require that AB meet its burden to prove that its product could not have contributed to the causation of plaintiff's injury on the large Stony Brook campus because that is "like a needle in a haystack." However, the burden of proof on summary judgment for asbestos cases is consistent with the burden in non-asbestos cases, even though it may be difficult to establish non-liability (see e.g., Lopez v New York Life Ins. Co., 90 AD3d 446 [1st Dept 2011] [despite affidavits and other evidence, owner, manager, and maintenance company failed to sustain their burden to prove that they did not have constructive notice of a puddle on which plaintiff slipped]). Further, any "unfairness" cuts both ways. At trial, the burden switches to plaintiff to prove his or her case. Among the potential difficulties faced by plaintiff at trial are identification of a product which might not have been labeled or the problem of recalling remote events that could have taken place decades ago.

[2] The court will not address the one sentence reference in defendant's reply, raised for the first time, that AB also manufactured floor tile lines that did not contain asbestos.

Sources

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