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General Contractor’s Motion for Summary Judgment Denied

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Supreme Court of New York, New York County (NYCAL)

In this asbestos action, defendant Arconic, Inc. f/k/a Alcoa, Inc., (Alcoa) moved for summary judgment on the basis that asbestos-containing fireproofing material was not used at the World Trade Center during the plaintiff’s employment and that Alcoa, as a general contractor, did not supervise or control the plaintiff’s work as a sub-contractor employee. Plaintiff decedent, Kevin Ryder, opposed, noting that a general contractor can be held liable for an injury when it has actual or constructive knowledge of an unsafe work condition, or created such working conditions. In its reply, Alcoa reemphasized that fire-proofing spray was asbestos-free after 1970, and that Mr. Ryder’s employment at the World Trade Center began in 1970.

The court ultimately determined that Alcoa failed to meet its burden on summary judgment as Alcoa’s motion relied primarily on one memo from 1970 from the construction manager of the World Trade Center that discussed contracts and the use of fire-proofing spray. Though the memo indicated that an agreement was reached between the construction manager and contractors regarding the costs necessary to switch over the asbestos-free fire proofing spray, the memo did not indicate a firm date by which the switch must take place, nor any confirmation that its use was not resumed for a time period after the 1970 internal evaluation. Conversely, the court determined that the plaintiff offered sufficient documentary evidence to raise a question of fact as to the extent of asbestos-containing material in use at the World Trade Center post-1970, its proximity to the plaintiff’s work, and whether Alcoa had notice of, or created, the dangerous condition. The court also determined that “it is also clear via the many 1970s memos in both parties’ exhibits that defendant Alcoa was well-aware of risks surrounding the use of asbestos-products” and that there is “apparent evidence” that Alcoa was involved in selecting the materials used by its sub-contractors. Thus, a reasonable juror could determine that Mr. Ryder was exposed to asbestos during his work at the World Trade Center and that Alcoa had notice of unsafe work.

Read the full decision here.