As previously reported by the Asbestos Case Tracker, Judge Manuel Mendez, former NYCAL coordinating judge, denied defendant Mario & DiBono Plastering Co., Inc.’s (M&D) motion for summary judgment. M&D appealed this decision. The Appellate Division noted that the court properly denied M&D’s smmary judgment motion since it failed to unequivocally establish that the materials it used could not have contributed to plaintiff’s injury. Moreover, the court noted that in light of the decedent’s testimony, which M&D submitted in support of it motion, identifying the fireproofing as a source of his exposure and M&D as the contractor that applied the fireproofing, plaintiff’s failure to specifically list M&D in response to interrogatories was not, by itself, sufficient for M&D to satisfy its burden.
Further, in opposition to M&D’s motion, the plaintiff submitted sufficient evidence of facts and conditions from which M&D’s liability may be reasonably inferred which included decedent’s own testimony, as well as documentation from the 1960s and testimony from a representative of one of M&D’s suppliers concerning the use of asbestos the fireproofing material, as well as M&D’s knowledge of hazards associated with such fireproofing material.
Consequently, the Appellate Division affirmed Judge Mendez’s decision denying M&D’s motion for summary judgment.