Supreme Court of New York, New York County
In this asbestos action, Plaintiff Jane E. Wixted, as executrix for the estate of the decedent, Thomas N. Wixted (“Decedent”) filed a lawsuit in the Supreme Court of New York, New York County allegingDecedent was exposed to asbestos from his employment working around various products. Defendant, Crosby Valves, filed a Motion for Summary Judgement to dismiss the claims against them.
A court must grant summary judgment if the movant establishes its claim “as a matter of law” and no “issue of fact” warranting trial remains. CPLR § 3212(b). “In determining whether summary judgment is appropriate, the motion court should draw all reasonable inferences in favor of the nonmoving party and should not pass on issues of credibility.” Garcia v J.C. Duggan, Inc., 180 AD2d 579, 580 (1st Dep’t 1992), quoting Dauman Displays, Inc. v Masturzo, 168 AD2d 204, 205 (1st Dep’t 1990). In toxic tort cases about a defendant’s alleged failures to warn of a toxin’s dangers, the court must first decide whether the defendant has a legal duty to warn the plaintiff. Matter of New York City Asbestos Litig. (Dummitt), 27 NY3d 765, 787 (2016).
When a defendant in a toxic tort case moves for summary judgment, “the burdens of proof are virtually reversed.” Lopez v Gem Gravure Co., Inc., 50 AD3d 1102, 1108 (2d Dep’t 2008, Lifson, J.P., dissenting). Thus, for the moving defendant to meet its initial burden on summary judgment, it must do more than “point[] to gaps in [the] opponent’s evidence”; it must “‘affirmatively demonstrate the merit” of its position. Koulermos v A.O. Smith Water Prods., 137 AD3d 575, 576 (1st Dep’t 2016), quoting Dalton v Educ. Testing Serv., 294 AD2d 462, 463 (2d Dep’t 2002).
Crosby Valves, moved to dismiss this action on the grounds that the Plaintiff failed to establish (i) that Decedent was exposed to any asbestos products manufactured by Defendant or (ii) that Defendant had a duty to warn Decedent of asbestos products that, although not manufactured by Defendant, were used jointly with Defendant’s products. However, Plaintiff pointed to the testimony of Decedent’s former co-worker that Decedent was exposed to asbestos from work involving Defendant’s valves and also pointed to prior testimony of Defendant representative and on Defendant’s interrogatory responses, claiming that Defendant recommended use of asbestos gaskets with its valves.
The Court found that Plaintiff has proffered sufficient evidence, including (i) of Defendant’s awareness of the use of asbestos flange gaskets or insulation along with its valves and (ii) of Decedent’s work with Defendant’s valves, to raise issues of fact about the extent of Defendant’s involvement with asbestos flange gaskets and insulation. Therefore, Defendant’s motion for summary judgment is denied in its entirety.
Read the full decision here.