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General Contractor Defendant Fails to Meet Its Burden on Summary Judgment; Motion Denied

In this asbestos-related lawsuit, the defendant, Structure Tone, filed for summary judgment arguing that the plaintiff failed to establish that he was exposed to asbestos from working with or near products used by Structure Tone on jobsites.

In support of its motion, Structure Tone cited its answers to site-specific interrogatories that stated itdid not use asbestos–containing materials on the plaintiff’s job sites. Structure Tone argued further that the plaintiff affirmatively testified he was not exposed to asbestos at two job sites where it was the general contractor. And finally, Structure Tone cited the prior deposition testimony of its executive vice president, affirming that it did not use any asbestos-containing materials on job sites, nor did its sub-contractors.

Plaintiff opposed the motion, arguing that issues of fact existed which precluded summary judgment. Plaintiff argued thatStructure Tone was liable under common law negligence as well as New York Labor Law §200.

Summary judgment is a drastic remedy and should only be granted if the moving party has sufficiently established that it is warranted as a matter of law. See Alvarez v Prospect Hosp., 68 NY2d 320, 324, 501 N.E.2d 572, 508 N.Y.S.2d 923 (1986). “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 eliminate any material issues of fact from the case”. Winegrad v New York University Medical Center, 64 NY2d 851, 853, 476 N.E.2d 642, 487 N.Y.S.2d 316 (1985). Despite the sufficiency of the opposing papers, the failure to make such a showing requires denial of the motion. Id. at 853. Additionally, summary judgment motions should be denied if the opposing party presents admissible evidence establishing that there is a genuine issue of fact remaining. See Zuckerman v City of New York, 49 NY2d 557, 560, 404 N.E.2d 718, 427 N.Y.S.2d 595 (1980). “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, 580 N.Y.S.2d 294 (1st Dep’t 1992), citing Dauman Displays, Inc. v Masturzo, 168 AD2d 204, 562 N.Y.S.2d 89 (1st Dep’t 1990).

The elements of a common-law negligence cause of action are a duty owed by the defendant to the plaintiff, a breach of that duty, and an injury proximately resulting therefrom. See Jimenez v Shahid, 83 AD3d 900 (2d Dep’t 2011). Labor Law §200 is a codification of the common-law duty that a landowner or general contractor is to provide workers with a reasonably safe place to work. See Russin v Louis N. Picciano & Son, 54 NY2d 311, 316-317, 429 N.E.2d 805, 445 N.Y.S.2d 127 (1981). An implicit precondition to this duty “is that the party charged with that responsibility have the authority to control the activity bringing about the injury”. Comes v New York State Elec. and Gas Corp., 82 N.Y.2d 876, 631 N.E.2d 110, 609 N.Y.S.2d 168 (1993), citing Russin v Picciano.

In denying Structure Tone’s motion, the court found that the company’s vice president did not have personal knowledge of the asbestos-content of its sub-contractor’s work materials, and the court relied on the plaintiff’s testimony confirmed that he saw Structure Tone’s workers at various job sites over the years. The court found that Structure Tone failed to meet its initial burden in “unequivocally establish[ing] that… it[] could not have contributed to the causation of plaintiff’s injury”, Reid supra, 212 AD2d at 463. Because issues of fact existed, the motion for summary judgment was denied.

Read the full decision here.