Opinion
9284 Index 190150/14
05-09-2019
IN RE NEW YORK CITY ASBESTOS LITIGATION George Benson, et al., Plaintiffs–Respondents, v. A.O. Smith Water Products Co., et al., Defendants, Barnes & Jones, Inc., Defendant–Appellant.
McGivney, Kluger & Cook, P.C., New York (Erin N. Miter of counsel), for appellant. Weitz & Luxenberg, P.C., New York (Pierre A. Ratzki of counsel), for respondents.
McGivney, Kluger & Cook, P.C., New York (Erin N. Miter of counsel), for appellant.
Weitz & Luxenberg, P.C., New York (Pierre A. Ratzki of counsel), for respondents.
Friedman, J.P., Renwick, Kapnick, Kahn, Oing, JJ.
Order, Supreme Court, New York County (Manuel J. Mendez, J.), entered September 18, 2018, which denied defendant Barnes & Jones's motion for summary judgment dismissing the complaint against it, unanimously affirmed, without costs.
Assuming Barnes & Jones established prima facie entitlement to summary judgment based on its executive's affidavit and its manufacturer catalogs indicating that none of its steam traps warrant the use of flanges such that they could not have contributed to plaintiff's injuries, plaintiff's deposition testimony, together with Barnes & Jones's interrogatory response, admitting that some of its pre–1975 steam traps contained asbestos gaskets, raised an issue of fact as to whether plaintiff was in fact exposed to asbestos dust while working on Barnes & Jones steam traps. Plaintiff unhesitatingly recalls working with gaskets with the brand name Barnes & Jones that produced breathable dust when he cut or dislodged them during the course of his work ( Matter of New York City Asbestos Litig., 146 A.D.3d 700, 44 N.Y.S.3d 911 [1st Dept. 2017] ).