Supreme Court of New York, New York County
The plaintiff alleged that Arthur Shanahan (the decedent) was exposed to asbestos while employed as a carpenter at various commercial, residential, and industrial sites in Manhattan from approximately 1982 to 2016. During this time, the decedent worked at the World Trade Center framing walls where it is alleged he removed asbestos-containing fireproofing spray that had been previously applied on the ceilings. He removed the fireproofing spray with a claw hammer and then swept the dust off the floor.
Defendant contractor moved for summary judgment, alleging the plaintiff has failed to provide any evidence the decedent was exposed to asbestos from any of the contractors’ employees using asbestos-containing products in his vicinity and, that as a contractor only, they cannot be held liable for any of the decedent’s interactions with already existing asbestos-containing fireproofing spray. In support of its motion, the defendant argued the decedent conceded in his testimony he was not in the same vicinity as the contractors’ employees during the installation of the fire-proofing spray. Further, the defendant argues the decedent created his own unsafe working conditions which were non-complaint with OSHA standards.
The plaintiff argued the decedent sufficiently described what he believed to be asbestos-containing fireproofing spray that was earlier applied by the contractors’ employees. The plaintiff further argued that the contractor declined the opportunity to use non-asbestos containing fireproofing spray. They further argue that an inquiry of the foreseeability of the way the decedent removed the asbestos-containing fireproofing spray is an issue of fact for the jury to determine. The plaintiff also argued the decedent specifically identified this contractor as the one who previously installed fireproofing spray in the World Trade Center. In fact, this contractor had the exclusive contract to provide asbestos-containing fireproofing spray in the World Trade Center from 1966 to 1969. The former chairman of the Board of U.S. Mineral, the supplier of the asbestos-containing fireproofing spray to the contractor testified that U.S. Mineral issued sales and application manuals to its licensed contractors which required the use of masks and proper protective equipment, placed warnings on the asbestos-containing fireproofing spray bags themselves starting as early as 1962, and conveyed to its contractors that sweeping up dry asbestos dust would cause a health hazard. He further testified that the contractor declined the opportunity to use non-asbestos fireproofing spray for their work at the World Trade Center.
The court noted that in order to prevail on a motion for summary judgment, the proponent must make prima facie showing of entitlement to judgment as a matter of law, through admissible evidence, eliminating all material issues of fact. Once that burden is met, the burden switches to the non-moving party to rebut the prima facie showing, by producing contrary evidence in admissible form, sufficient to require a trial of material factual issues. In New York City Asbestos Litigation, the “plaintiff is not required to show the precise causes of his damages, but only show facts and conditions from which defendant’s liability may be reasonably inferred.” (Reidv. Ga. Pacific Corp., 212 A.D.2d 462, 622 N.Y.S.2d 946[1st Dept. 1995]).
In this case, the decedent’s deposition testimony, the contractor’s World Trade Center contracts, and the trial testimony of the former chairman of the Board of U.S. Mineral provide sufficient evidence to meet the Reid standard. As the decedent identified this contractor as the exclusive contractor who applied asbestos-containing fireproofing spray in the World Trade Center, the plaintiff has demonstrated facts and conditions from which liability may be reasonably inferred to warrant the denial of the motion for summary judgment.