Supreme Court of New York, New York County, May 19, 2021
Defendant The Goodyear Tire & Rubber Company filed a motion for summary judgment pursuant to CPLR 3212 arguing that the only product manufactured by defendant which matches plaintiff Pietro Camiolo’s (the decedent) description of the alleged asbestos product he worked with, never contained asbestos, and that there is no evidence that any Goodyear brand floor tile with which decedent may have worked actually contained asbestos. The plaintiffs oppose the motion.
The court noted that the plaintiff must allege facts and conditions from which the defendant’s liability may be reasonably inferred; specifically, the plaintiff must provide sufficient evidence to show that he not only worked in the vicinity of the defendant’s products, but also that he was exposed to asbestos as a result of the use of the defendant’s product.
Goodyear argued that the product identification rests upon the testimony of decedent’s brother who testified that decedent installed floor tiles with a solid colored bottom. Goodyear affirms that the only floor tile sold by Goodyear during the relevant period that matches the tile described by decedent’s brother is deluxe-on-grade tiles. Goodyear submits the affidavit of Joseph A. Kemmerling, who was employed by Goodyear from 1968 to 1979 as a development engineer and as section manager in the vinyl films and flooring division. Kemmerling affirms that neither the deluxe-on-grade tile nor homogenous-on-grade tile contained asbestos. Goodyear also attaches the deposition of Russel T. Holmes, who was employed by Goodyear from 1954 until 1964 as a production supervisor and engineer for the vinyl products division. Holmespreviously testified neither the deluxe-on grade tile nor homogenous-on-grade tile contained asbestos.
Plaintiff opposed the motion and argued that Goodyear failed to demonstrate unequivocally that its product did not contribute to decedent’s injury. Plaintiff further argued that the affidavit of Holmes contradicts Kemmerling’s opinions and fails to support Goodyear’s claim that Goodyear tiles described by decedent’s brother could only have been asbestos-free. Plaintiff attaches Goodyear’s Fourth Amended Response to Plaintiffs Standard Interrogatories to All Defendants, December 1998 at 23-24., in which Goodyear described their heavy duty homogenous floor tiles as containing 5% asbestos. Plaintiff notes that Holmes testified that Goodyear produced heavy duty homogenous floor tiles up until at least 1975.
Consequently, the court ruled that plaintiff has raised several issues of fact as to the testimony of defendant’s employees and decedent’s brother regarding product identification warrants the denial of defendant’s motion summary judgment.