Court: Supreme Court of New York, New York County
In this asbestos action, defendant Tishman Liquidating Corporation moved for summary judgment on the grounds that it is not responsible for any of the three job sites for which the plaintiff identified the company as the general contractor, and, therefore, is not liable for any injury that the plaintiff allegedly sustained from such sites.
For two of the sites, Tishman proffered New York Times articles that reported the general contractors to be companies other than Tishman, and for the third site, Tishman proffered a letter, from attorney James A. Edwards to establish that Tishman Realty & Construction Co. Inc. is liable for any alleged injury suffered by the plaintiff at this site. In response, the plaintiff alleged that Tishman Liquidating failed to establish that it is free from liability and could not have caused the plaintiff’s illness. The plaintiff further alleged that he encountered Tishman at numerous worksites throughout his career.
The court first referenced the applicable standard for summary judgment, noting that summary judgment is a ‘drastic remedy.’ The court considered the letter offered by Tishman, finding that attorneys’ affirmations and letters, without any personal knowledge, are unavailing and have no probative value. Edwards’ letter failed to demonstrate that he had any personal knowledge, was unsupported by any documentation, and did not conclusively establish that Tishman is free from any liability. Based on the evidence offered by TIshman, the court held that Tishman failed to meet its initial burden in establishing that it is free from liability and that it could not have contributed to the plaintiff’s injury.
Additionally, the court reviewed the plaintiff’s deposition testimony that he worked at hundreds of job sites and was exposed to asbestos through work done by employees of general contractors. The plaintiff testified that he was able to identify the workers based upon the hard hats that were worn, and that Tishman was one such contractor. This testimony alone constituted a dispute of material facts, and any apparent discrepancy between the testimony and the evidence of record goes only to the weight and not the admissibility of the testimony. Thus, as Tishman Liquidating failed to meet its initial burden, and as triable issues of fact existed, the court denied Tishman’s motion for summary judgment.
Read the full decision here.