In this case, it was alleged that the decedent was exposed to asbestos from laundering her husband, Eugene Blamowski’s, work clothes. Mr. Blamowski worked as a laborer at Bethlehem Steel from 1955-84, with the exception of his Army service from 1958-62. He and the decedent were married in 1965 and the decedent had laundered his clothes since that time. Several defendants, including Frontier Insulation Contractors, Beazer East, Riley Power, Inc., and Buffalo Pumps, Inc., moved for summary judgment based on lack of product identification and argued that Mr. Blamowski could not show he was exposed to their products or work.
The court granted all of the motions. The decedent had died prior to testifying, but prior to her death she signed interrogatory responses listing, either upon her information and belief or her attorney’s information and belief, moving the defendants’ names. During his deposition, Mr. Blamowski admitted that his wife never visited him at the plant and he did not identify any of the moving defendants or their products. In opposition to the motions, the plaintiff’s counsel relied upon invoices, prior discovery responses and deposition testimony of other Bethlehem Steel workers. The court found that all the defendants had shifted the burden to the plaintiff, since some were improperly named in the interrogatory responses and others had demonstrated an absence of proof. Regarding the interrogatory responses, the court cited the Matter of Eighth Jud. Dist. Asbestos Litig. [Gorzka] 28 AD 3d 1191 (2006) and held: “[T]he failure of plaintiffs to name [defendant] as a supplier in their responses to interrogatories constitutes an admission that [defendant] was not a source of an asbestos-containing product to which plaintiff was exposed and [defendant] thus established that plaintiff’s action against it has no merit.” Regarding the evidence the plaintiff relied upon in opposition to the motions, the court cited Diel v. Flintkote Co., 204 AD2d 53 (1st Dept. 1994) and held: “It is insufficient to show that a defendants’ products were ”’… .seen in the plant; it must be shown that plaintiff was exposed to asbestos fibers released from defendant’s products.”