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Joint Compound Supplier’s Motion for Summary Judgment Denied; Corporate Representative’s Testimony Inadmissible

Supreme Court of New York, New York County, June 15, 2022

In this asbestos action, decedent Anastasios Katechis alleged exposure to asbestos from joint compound he used as a painter for Mamais Construction from 1967 to 1971. During his deposition, Katechis identified defendant Allied Building Products Corp. as a supplier of joint compound during that time.

Allied moved for summary judgment, contending that they could not have caused or contributed to Katechis’ injury as Allied did not supply joint compound while the decedent worked for Mamais. In support, Allied proffered testimony from a corporate representative that Allied did not use joint compound during his tenure. The plaintiff opposed, arguing that the decedent’s testimony identifying Allied as a supplier of joint compound raises an issue of material fact. In addition, the plaintiff stated that “defendants concede that they did not exclusively supply roofing materials.”

The court analyzed this matter under the NY CPLR 3212(b) summary judgment standard. Pursuant to this standard, “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 demonstrate the absence of any material issues of fact.” The court also noted that this is a “heavy” burden. Subsequently, “[i]f the moving party meets this burden, the burden then shifts to the non-moving party to establish the existence of material issues of fact which require a trial of the action.”

With regard to the corporate representative testimony, the court agreed with the plaintiff that the testimony “cannot be relied upon to meet the heavy burden Allied bears to establish its prima facie case.” The plaintiff cited to NY CPLR 3117(a)(2) for the proposition that the testimony is inadmissible as the plaintiff was “not an adversely interested party at the time the deposition testimony was taken. The plaintiff also argued that the testimony is inadmissible under NY CPLR 3117(a)(3) as the plaintiff did not have notice of and was not present for the corporate representative’s testimony.

Even if Allied met its prima facie burden, the court found that the plaintiff’s testimony identifying Allied as a supplier of joint compound while working for Mamais Construction is “sufficient to raise an issue of fact so as to preclude the grant of summary judgment dismissing the complaint” under Dollas v. W.R. Grace and Co. Specifically, “Allied’s contentions do not refute the sufficiency of decedent’s testimony, since the adequacy of testimony are a genuine issue of fact that must be resolved by a jury.” Thus, the court denied the motion for summary judgment.

Read the full decision here