Denial of Summary Judgment Upheld in Labor Law Action Against Port Authority

Supreme Court of New York, Appellate Division, First Department

In this matter, the plaintiff brought Labor Law § 200 and common law negligence claims against Defendant, Port Authority of New York and New Jersey. The decedent alleged that he developed malignant pleural sarcomatoid mesothelioma as a result of occupational exposure to asbestos at John F. Kennedy International Airport while he worked for Pan American World Airways (Pan Am) in the 1970s. The decedent passed away before he was able to be deposed. Judge Manuel Mendez, former NYCAL coordinating judge, denied Port Authority’s summary judgment motion. Thereafter, Port Authority appealed Justice Mendez’s order.

The Appellate Division, First Department affirmed Justice Mendez’s decision, noting the existence of several issues of fact. The Appellate Division set forth that an issue of fact existed regarding whether Port Authority “had the authority to control the activity bringing about the injury.” In support, the Appellate Division cited the lease agreement between the Port Authority and Pan Am, which stated that Pan Am was to “obtain Port Authority’s advance approval to Pan Am’s specifications, including as to ‘materials.’” A project manager also testified that they observed Port Authority engineers inspecting the site.

In addition, the Appellate Division rejected Port Authority’s argument that some portions of the decedent’s co-worker’s testimony contained inadmissible hearsay. Specifically, they cited a co-worker’s testimony that she interacted with the decedent in the JFK Airport terminal on a constant basis raised an issue of fact “as to whether the regular application of asbestos-containing products in the terminal caused decedent to be exposed to asbestos fibers in the air.” The Appellate Division set forth that a party may present inadmissible evidence at the summary judgment stage as long as the inadmissible evidence is not the “sole basis for the finding that there are issues of fact.”