Summary
In Berensmann v 3M Co (122 AD3d 520 [1st Dept. 2014]), the First Department affirmed the trial court's denial of defendant's motion for summary judgment where the plaintiff identified the moving defendant's product by testifying that "It might've been" a brand that he used, then testified "No I can't remember" then testified "it's likely that I did, but that's the best I could do" and ultimately, that he did not even believe the product contained asbestos (Berensmann, 2013 NY Slip Op 33137 (U) [Sup Ct, New York County 2013]).
Summary of this case from Re v. Air & Liquid Sys. Corp.Opinion
13566, 190472/12
11-20-2014
In re New York City Asbestos Litigation. William BERENSMANN, et al., Plaintiffs–Respondents, v. 3M COMPANY formerly known as Minnesota Mining & Manufacturing Co., et al., Defendants, Georgia–Pacific LLC, etc., Defendant–Appellant.
Lynch Daskal Emery LLP, New York (Scott R. Emery of counsel), for appellant. Levy Konigsberg LLP, New York (James M. Kramer of counsel), for respondent.
Lynch Daskal Emery LLP, New York (Scott R. Emery of counsel), for appellant.
Levy Konigsberg LLP, New York (James M. Kramer of counsel), for respondent.
RENWICK, J.P., SAXE, MOSKOWITZ, DeGRASSE, RICHTER, JJ.
Opinion Order, Supreme Court, New York County (Sherry Klein Heitler, J.), entered on or about December 13, 2013, which denied defendant's motion for summary judgment dismissing the complaint and all cross claims as against it, unanimously modified, on the law, to grant the motion to the extent of dismissing plaintiffs' claims related to defendant Georgia–Pacific LLC's (defendant) wallboard products allegedly containing asbestos, and otherwise affirmed, without costs.The complaint alleges that plaintiff William Berensmann was exposed to asbestos-containing sheetrock and joint compound manufactured by, among other companies, defendant. As an initial matter, it is undisputed that defendant never manufactured wallboards containing asbestos, and thus, the claims relating to defendant's wallboards are dismissed.
Summary judgment in defendant's favor was otherwise properly denied since defendant failed “to unequivocally establish that its product could not have contributed to the causation of plaintiff's injury” (Reid v. Georgia–Pacific Corp., 212 A.D.2d 462, 463, 622 N.Y.S.2d 946 [1st Dept.1995] ). That plaintiff may have had the subjective belief that the joint compound that he used to perform repairs in his home did not contain asbestos does not warrant a different determination, where the evidence demonstrates that defendant did manufacture joint compound containing asbestos at the relevant times. Although the record shows that defendant began to manufacture and ship asbestos-free joint compound around the time that plaintiff purchased defendant's product, issues of fact exist as to whether asbestos-free joint compound was available in Manhattan where plaintiff made his purchase of the subject product (see e.g. Lloyd v. W.R. Grace & Co.-Conn., 215 A.D.2d 177, 626 N.Y.S.2d 147 [1st Dept.1995] ).
We have considered the remaining contentions and find them unavailing.