Supreme Court of New York, New York County, July 28, 2022
In this asbestos action, decedent Roy Barbarino alleged exposure to asbestos from brake lining as a bus maintainer for the New York City Transit Authority (NYCTA) from 1962 to 1987. Defendant Abex moved for summary judgment, contending that they could not have caused or contributed to Barbarino’s injury, as Barbarino did not identify an Abex product. Instead, Barbarino identified another brake manufacturer during his deposition. Further, the deposition testimony of two of Barbarino’s co-workers was of no effect, as they could not have worked together. The plaintiff opposed, noting that Abex’s corporate representative “testified that ‘Abex’s Formula 80 … was an asbestos-containing friction material specifically designed for use on city buses.’ Further, one of Barbarino’s co-workers testified that they worked together on an adjacent line to the brake grinding machine.”
The court analyzed this matter under the NY CPLR 3212(b) summary judgment standard. Pursuant to this standard, “the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact.” The court also noted that this is a “heavy” burden. Subsequently, “[i]f the moving party meets this burden, the burden then shifts to the non-moving party to establish the existence of material issues of fact which require a trial of the action.”
The court found that Abex failed to meet its burden as Abex’s asbestos-containing material was designed for city buses and in use from the 1940s until 1987. The court determined that Abex merely pointed to gaps in the plaintiff’s proof, which is insufficient to satisfy its summary judgment burden. Further, a NYCTA superintendent testified that Abex manufactured brake blocks which were sent from a central storeroom to all other NYCTA bus depots. Thus, the court denied Abex’s summary judgment motion.
Read the full decision here