Supreme Court of New York, New York County
Defendant Cleaver-Brooks, Inc. filed a motion for summary judgment contending plaintiff John B. Daly, Jr. failed to produce any evidence that he was exposed to asbestos as a result of work on or in the proximity of products manufactured by Cleaver. The plaintiff alleges his mesothelioma diagnosis was caused by his exposure to asbestos while working as a steamfitter at Indian Point Power Plant in New York. The plaintiff testified to working around boilers that were manufactured by Cleaver and that he observed insulators applying asbestos insulation to Cleaver’s boiler, which created dust that he breathed in.
In its motion for summary judgment, Cleaver argued that the plaintiff failed to establish a scientific basis for finding causation attributable to Cleaver’s product. The defendant noted that the plaintiff testified that he could not quantify the amount of time that he spent working in the vicinity of others performing insulation work on a Cleaver boiler. Further, Cleaver submitted an affidavit affirming Cleaver shipped only one boiler to Indian Point Power Plant and that it included non-asbestos containing insulation. The defendant argued it had made a prima facie showing of entitlement to summary judgment as it showed the defendant could not have contributed to the causation of plaintiff’s injury.
The plaintiff argued the defendant was not entitled to summary judgment because the defendant cannot sustain its burden by only pointing out gaps in plaintiff’s proof.
The court, relying on its recent decision in O’Sullivan v Borg-Warner, sided with the defendant and held that there was no gap in testimony where a plaintiff was questioned about a brand and identified said brand as the maker of the product, which the plaintiff alleged caused exposure to asbestos. Here, the plaintiff was questioned about Cleaver’s alleged asbestos containing products. At his deposition, the plaintiff identified Cleaver as the brand that manufactured the boiler during the alleged exposure. The plaintiff testified to being exposed to asbestos insulation from the Cleaver boiler, a boiler which the defendant has demonstrated, did not contain asbestos insulation during the time that the plaintiff testified to working in its vicinity. Based on this, the court found the plaintiff’s attempt to raise a feigned issue of fact as to whether the defendant is “simply pointing to gaps” in the plaintiffs’ evidence fails.
The court concluded the defendant established that its product did not contain asbestos and that its product, as identified by the plaintiff, could not have caused the plaintiff’s injuries relating to asbestos exposure. As such, defendant Cleaver was granted summary judgment on the grounds that the defendant had made a prima facie case demonstrating lack of causation.