Court: Supreme Court of New York, Appellate Division, Third Department
In this asbestos action, the plaintiff, Albert Howard, contends that he developed mesothelioma following his service in the United States Navy from 1961 to 1978. During this time, he alleged asbestos exposure from working with pumps, including Armstrong pumps, while serving on various submarines whose names he could not recall. The defendant, Armstrong, moved for summary judgment, which the plaintiff opposed. The trial court denied Armstrong’s motion.
Armstrong appealed the trial court’s denial of summary judgment. First, Armstrong argued that it could not be liable for any alleged exposure prior to their incorporation in December 1965. Notably, the plaintiff did not oppose this portion of Armstrong’s motion. As such, the Appellate Division reversed the trial court’s denial of summary judgment for any alleged exposure prior to December 20, 1965.
However, the Appellate Division affirmed the trial court’s denial of summary judgment for any alleged exposure post 1965. The Appellate Division found that Armstrong did not meet its prima facie burden for summary judgment. The Appellate Division pointed to Howard’s “lengthy” deposition testimony in which he identified Armstrong’s pumps on various submarines and testified that he referenced Armstrong’s manual when he performed work on their pumps. The fact that Howard could not recall the specific vessels he served on was not fatal to his claims at the summary-judgment stage. The Appellate Division also found Armstrong’s corporate representative affidavit lacking as he failed to identify the basis of his “averments concerning US Navy standards for procurement of pumps for its vessels.” Further, the corporate representative’s “representation that defendant’s pumps would not have required external insulation to properly function as intended is insufficient . . . as his affidavit fails to address the specific application for the pumps at issue; to wit, the use of such pumps on a nuclear submarine.”
Notwithstanding the Appellate Division’s finding that Armstrong did not meet its burden, the Appellate Division also found that the plaintiff’s opposition papers sufficiently raised factual issues. Thus, the Appellate Division modified the trial court’s order.
Read the full decision here.