May 25, 2018
Recently, Justice James McCarthy presiding over the asbestos cases in New York’s Fifth Judicial District, granted defendant Cytec’s motion for summary judgment dismissing the complaint against them, finding no evidence to support a claim as plaintiffs’ responses to interrogatories are insufficient to defeat such a motion.
The action was brought on behalf of the plaintiff’s decedent, Julia Sgarlata, who alleged exposure to asbestos during her employment at Diemolding Corp. in Canastota, New York, from 1955 to 1999. The Motion for Summary Judgment was made by Cytec Engineering (as successor to Fibertite). Cytec moved for summary judgment alleging that the sole witness, Decedent’s son, John Lloyd, unequivocally stated that he lacked knowledge regarding the products and materials used by his mother at Diemolding. Cytec contended that because the son/witness could not identify any of the products used in the plant, there was no, and could be no, evidence that the Decedent was exposed to asbestos from their product, Fiberite Molding Compound.
While Cytec conceded that they were identified in Plaintiff’s Interrogatories, they claimed that this was not dispositive with respect to the issue of defendant’s initial burden of proof, to make a prima facie showing that its product could not have contributed to the causation of injuries. Information provided in Interrogatories is based upon “information and belief,” not necessarily fact. As such, Cytec contended that because of the lack of admissible evidence in Plaintiff’s Interrogatory response, coupled with the admitted failure of Decedent’s sole witness to identify them as a source of Decedent’s alleged exposure, satisfied said initial burden. Interestingly, Cytec also conceded that their product was shipped to Diemolding plant, alleging however, that their mere presence in the facility was insufficient, in and of itself, to defeat a Motion for Summary Judgment, as Plaintiff failed to demonstrate Decedent’s proximity to the product, let any work with it.
In opposition to this motion, Plaintiff contended that the defendant was identified in their Interrogatories, which was sufficient to defeat summary judgment. That said, Plaintiff proffered the testimony of prior witness from an unrelated action; alleging that individual worked at Diemolding and was familiar with the manufacturing process. In his testimony, this prior witness described the working conditions at the plant, and identified Fiberite’s presence therein; as well as generally identifying dust created during various steps of manufacturing. Plaintiff concluded that Cytec failed to satisfy their burden of proof that their product could not have contributed to Decedent’s exposure, and therefore, the burden should not shift to Plaintiff. Even assuming arguendo that the burden did shift however, the Plaintiff contended that it created a reasonable inference that Decedent was exposed to defendant’s product; citing the testimony of the son and the prior fact witness, the Plaintiff created a permissible inference concerning product identification, and ultimately a triable issue of fact.
In their reply, Cytec stated they provided sufficient evidence to shift the burden to the Plaintiff, reaffirming that Interrogatories are only based on information and belief, not identified testimony. While Lloyd was able to identify many of Decedent’s co-workers, none were produced, and no affidavits were filed in Opposition. Cytec did not dispute that their product was there, but maintained that it was insufficient to simply show their presence in the plant, instead requiring a showing that Decedent was exposed to fibers released from their product. Absent such a showing, Cytec believed they were entitled to Summary Judgment.
The Court began by reiterating the standard for a summary judgment motions, wherein the defendant bears the initial burden of establishing that its product “could not have contributed to the causation of Plaintiff’s injuries.” Citing many cases, the Court depended primarily on In re Eight Judicial Dist. Asbestos Litigation [Gorzka], 28 AD3d 1191 (4th Dept. 2006). In Gorzka, the Plaintiff did not identify the Moving-Defendant as a supplier of any asbestos containing product to which plaintiff was exposed; in sum and substance, stating failure to identify a defendant as a supplier in the interrogatories constitutes an admission that the defendant was not a source of asbestos containing material to which plaintiff was exposed. Though, it was conceded that Cytec was identified in Plaintiff’s Interrogatories in the instant action.
The Court cited the “Strict requirements of proof under CPLR 3212,” stating that it agreed that Interrogatories are based on information and belief, and not an evidentiary form sufficient to establish a defendant as a source of exposure. Going further, the Court noted that the Plaintiff’s sole witness admitting he was unable to identify products used, clearly established Defendant’s burden of proof. To oppose summary judgment, it is axiomatic that “Plaintiff must allege facts and conditions from which the defendant’s liability may reasonably be inferred, that is, that Plaintiff worked in the vicinity where defendant’s products were used, and that plaintiff was exposed to defendant’s product (Cawien v. Flintkote Co., 203 AD2d 105, 105-106)” In re New York City Asbestos Litigation [Corneau], 216 AD 2d 79, 80 (1st Dept. 1995). The Decedent worked as an inspector, as well as, shipping and receiving manager, but never worked in production. The prior fact witness testified that he used Cytec’s product, but gave no testimony that Decedent ever did, or even that she was ever in product’s presence. The Court pointed out the “glaringly absent” evidence concerning Decedent’s exposure to Cytec’s product. Ultimately, the they cited Palsgraf, “Negligence is not actionable unless it involves the invasion of a legally protected interest, the violation of a right. Proof of negligence in the air, so to speak, will not do.” (Emphasis added).