Partial Summary Judgment Granted to Glove Manufacturer Based on Acquisition Agreement

Posted by

Supreme Court of New York, New York County

Defendant CSC Scientific Company, Inc. filed the present motion for summary judgment arguing that the plaintiffs have failed to identify a CSC product as a source of decedent’s asbestos exposure over a period from 1976 to 1979 or at any other time. By way of background, this matter arises from decedent Michael Love’s diagnosis of mesothelioma on July 31, 2018, which led to his death on November 9, 2019.

CSC argued that the absence of evidence of the decedent’s exposure to CSC’s products establishes CSC’s freedom from liability, and shifts to the plaintiff the burden of demonstrating, by admissible evidence, the existence of a factual issue requiring a trial of the action, or of tendering an acceptable excuse for the plaintiff’s failure to do so. CSC argues that that to meet this burden, the plaintiff must first establish that the decedent was exposed to the defendant’s product, which requires identification of the specific defendant-manufacturer of the offending product. CSC further argued that the plaintiff did not present evidence creating a reasonable inference that the decedent breathed in respirable asbestos fibers from CSC products between 1976 and 1979 and, thus, proximate cause cannot be established. Moreover, CSC argues that the decedent could not identify the manufacturer of any of the asbestos gloves or boards. The decedent testified that gloves ordered from Fisher Scientific, Thomas Scientific, Dick Blick, Triarco, and Cenco [CSC] were identical and that since the decedent did not unpack the box of gloves he had no way of knowing if the gloves came from any of the companies mentioned. Further, CSC notes “Decedent recalled seeing a box of boards from Cenco [CSC]. However, he offered no testimony whatsoever that he ever actually performed the scoring, snapping or scraping work on a board supplied from Cenco”

 Lastly, CSC notes that that even if it’s Cenco products contained asbestos, CSC cannot be held liable for any exposure to asbestos from Cenco products which may have occurred before July 31, 1976 and after April 17, 1979. Defendant attaches an Acquisition Agreement dated July 31, 1976 in which CSC acquired all of Cenco Incorporated’s assets and an Asset Purchase Agreement dated April 17, 1979, in which it sold all Cenco assets to EBB Corporation.

The plaintiff argues that the testimony and documents demonstrate that the decedent used and was exposed to Cenco products throughout his career, including the period between July 31, 1976 and April 17, 1979, for which plaintiff avers, CSC acknowledges responsibility. The plaintiff argues that the decedent and his wife plaintiff Eileen Love both identified Cenco asbestos gloves and boards, and recalled using them. Therefore, the court noted that plaintiff has raised an issue of fact barring summary judgment on the issue of CSC’s liability for its sale and distribution of Cenco products. However, the court notes that CSC should not be held liable for Cenco products sold before July 31, 1976 and after April 17, 1979.

Therefore, the court denied CSC”s motion for summary judgment dismissing the plaintiff’s complaints and all cross-claims but awarded partial summary judgment dismissing all claims and cross claims against CSC for potential liability arising out of alleged asbestos exposure occurring prior to July 31, 1976 and after April 17, 1979.