September 17, 2002.
Order, Supreme Court, New York County (Helen Freedman, J.), entered May 4, 2001, which denied appellant's motion for summary judgment dismissing the complaint, affirmed, without costs.
ALANI GOLANSKI, for plaintiff-respondent.
ALLAN YOUNG, for defendant-appellant.
Sullivan, J.P., Rosenberger, Rubin, Friedman, Marlow, JJ.
Appellant argues that the law of New Jersey, and not that of New York, with respect to the sufficiency of a plaintiff's showing of product identification and exposure in an asbestos case, is applicable to the instant facts. However, we perceive no relevant conflict between the laws of New Jersey and New York as they bear upon these issues (compare James v. Bessemer Processing Co., 155 N.J. 279 and In re Brooklyn Navy Yard Asbestos Litig., 971 F.2d 831, 837), and, accordingly, a choice of law analysis is unnecessary (see Elson v. Defren, 283 A.D.2d 109, 114). Under the relevant law of either jurisdiction, the court properly denied appellant's motion for summary judgment.
It is axiomatic that summary judgment is a drastic remedy which should not be granted where there is any doubt as to the existence of a triable issue of fact (see Andre v. Pomeroy, 35 N.Y.2d 361, 364; Akseizer v. Kramer, 265 A.D.2d 356) or where such issue is even arguable (see Gale v. Kessler, 93 A.D.2d 744). The summary process "classically and necessarily requires that the issues be first exposed and delineated" (Vern Norton, Inc. v. State, 27 A.D.2d 13, 14-15) since "[i]ssue-finding, rather than issue-determination, is the key" (Esteve v. Abad, 271 A.D. 725, 727 accord Sillman v. 20th Century-Fox Film Corp., 3 N.Y.2d 395, 404).
In the face of appellant's contention that there was a lack of proof of identification of its product at plaintiff's place of employment and of legally significant exposure, plaintiff, through the testimony and affidavit of a surviving co-worker of the decedent's at the Merkin Paint Plant, the alleged site of the decedent's injury producing exposure to asbestos fibers, has raised triable issues of fact regarding appellant's liability. Specifically, plaintiff's co-worker stated that plaintiff was exposed to asbestos fibers in the course of his employment at Merkin Paint. He recalled plaintiff unloading bags of asbestos from the cars of the trains and mixing the asbestos. He also described the "terrible" and "lousy" air quality and need to wear air filters in certain areas of the plant where plaintiff worked and where asbestos was present. Plaintiff's co-worker also identified one of the brand names of asbestos fibers which plaintiff mixed, worked with, and was exposed to as Lake Asbestos, a Canadian company. Although he could not be sure of the spelling of the name on the bags of raw asbestos fibers, he remembered it being similar to the word "lake" — either "LAK" or "LAQ." Appellant admits that prior to 1978 the abbreviation "LAQ" was used in "limited technical uses requiring initials."
We find plaintiff's opposition sufficient to raise triable issues of fact as to 1) whether asbestos fibers manufactured by appellant were used at Merkin during decedent's employment there and 2) the frequency, regularity and proximity of the decedent's exposure to asbestos while at Merkin (see Berkowitz v. A.C. S., Inc., 288 A.D.2d 148; cf. Comeau v. W.R. Grace, 216 A.D.2d 79).
All concur except Sullivan, J.P. and Friedman, J. who dissent in a memorandum by Friedman, J. as follows:
In denying the summary judgment motion by defendant-appellant Lac d'Amiante du Quebec, Ltee f/k/a Lake Asbestos of Quebec, Ltd. (LAQ), one of the many defendants originally sued in this action, the IAS court described as "hardly overwhelming" the evidence plaintiff offered to show that her decedent had been exposed to asbestos produced by LAQ. In my view, the IAS court's characterization understates the true weakness of plaintiff's opposition to the motion. I therefore would reverse and grant LAQ summary judgment.
It is undisputed that LAQ's sales records show that it never sold any asbestos to the decedent's employer, Merkin Paint Company (Merkin). Therefore, in order to defeat LAQ's motion for summary judgment, plaintiff was required to present something more than "surmise, conjecture, or suspicion," namely, "material facts of sufficient import to create a triable issue" (Shaw v. Time-Life Records, 38 N.Y.2d 201, 207). This plaintiff failed to do. Plaintiff's sole product-identification witness was Perry Russo, who had been one of the decedent's co-workers at Merkin. Russo testified at his EBT that, of the many different brands of asbestos Merkin used, one, which Russo believed to be from Canada, came in bags marked with a name that Russo thought "sound[ed] like" the word "lake," but he specifically remembered that the product's name "wasn't spelled L-A-K-E" (emphasis added). At another point in the EBT, Russo reiterated that the brand name in question "sounds like lake, but the word was spelled — was different than we would spell it in America." LAQ demonstrated that, during the relatively brief period between the time it commenced production and distribution of asbestos (in 1958) and the time Merkin terminated its use of asbestos (in 1959 or 1960), LAQ sold its asbestos in bags bearing the name "Lake," spelled L-A-K-E. Russo's recollection of a Canadian brand of asbestos with a name similar to "lake," but with a different spelling, is readily explained by LAQ's demonstration that, at the relevant times, there were numerous other asbestos producers from "lake" regions in Canada, such as the Black Lake and Brompton Lake areas of Quebec ("lac" being the French word for "lake").
The uncontroverted evidence that, at the relevant time, LAQ sold its product in bags bearing the name "Lake," taken together with Russo's specific recollection that the brand name he saw on the bags of asbestos was not spelled L-A-K-E, excludes the possibility that Merkin used LAQ's asbestos. Since Russo's testimony, the only evidence plaintiff presented to place LAQ's asbestos at the decedent's workplace, thus completely fails to raise a triable issue on that score, LAQ's motion for summary judgment should have been granted.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.