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General Contractor’s Motion for Summary Judgment Denied

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Court Jurisdiction: Supreme Court of the State of New York, New York County (NYCAL)

In this asbestos case, decedent, Richard Robinson passed away immediately after the commencement of the instant action. One of the defendants, Tishman Liquidating Corporation was not identified in plaintiff’s answer to interrogatories. However, during the discovery deposition of Roddy Davis, a fact witness that was an employee of the business owned by decedent and his family, Davis identified Tishman as a general contractor of job sites where Keystone Wire & Iron performed ironwork. Davis further recalled that decedent visited these jobsites for purposes of payroll, and to deliver supplies. Davis could not recall specific buildings in which Tishman was the general contractor or any specific years; however, he testified that he knew Tishman was a general contractor because he recalled seeing the name “Tishman” at certain jobsites.

Tishman Liquidating moved for summary judgment, arguing it was not the general contractor at any buildings identified by the plaintiff, and thus, not liable for any injury allegedly sustained from such sites. In opposition, plaintiff alleged that Tishman Liquidating failed to establish that it is free from liability and could not have caused decedent’s illness.

The court ultimately determined that Tishman Liquidating failed to meet its initial burden in establishing that it was free from liability and that it could not have contributed to decedent’s injury. Significantly, the court noted that Tishman Liquidating failed to proffer an affidavit from a representative of Tishman Liquidating with personal knowledge of the locations where it served as a general contractor. The court further noted that the attorney affirmation provided with Tishman Liquidating’s motion papers was unavailing as the attorney did not have the requisite personal knowledge. Finally, the court opined that the deposition testimony of Davis identifying Tishman was sufficient to raise a question of fact, which constituted an issue for resolution by the trier of fact.

For these reasons, Tishman Liquidating’s motion for summary judgment was denied.

Read the full decision here.