The plaintiff sued the defendants for his mesothelioma allegedly contracted from his work at the Northpoint Power Station in Northport, Long Island. Mechanical contractor, O’Connor, moved for summary judgment as to the plaintiff’s claims and cross claims. The motion was opposed by co-defendants National Grid and National Grid USA Service Company.
O’Connor maintained that summary judgment is appropriate because the plaintiff did not identify O’Connor in his Interrogatories and deposition testimony. However, the co-defendants opposed, stating that their affidavits submitted create a sufficient issue of material fact. Further, the co-defendants pointed out that O’Connor had agreed to a contractual indemnification for wrongful conduct.
The facts told that O’Connor worked on Units 1 and 2 of the powerhouse. The co-defendants argued that the plaintiff’s testimony placed him in the boiler room at Units 1 and 2. The plaintiff believed he had been exposed to asbestos while workers were installing water lines nearby. The co-defendants relied heavily upon O’Connor’s specific work and monthly progress reports whereby O’Connor had installed and insulated dust collectors. Specifically, the progress reports showed that O’Connor had used asbestos products. O’Connor contends that the reports “do not reflect that plaintiff himself worked at the power station,” but rather the reports only show employers who worked there. Further, O’Connor argues that it was not involved with boilers or piping of water lines. Additionally, O’Connor tried to raise inconsistencies in the plaintiff’s social security statements. The court rejected this portion of the argument as untimely.
The court reminded that the standard for summary judgment includes submitting supporting affidavits. The court was not persuaded by O’Connor’s argument and found that O’Connor tried to use gaps in the plaintiff’s testimony to establish no dispute of material fact. Specifically, the court was troubled by O’Connor’s lack of affidavit proffering “the dates that O’Connor worked at the power station” and that O’Connor did not submit an affidavit attesting that it did not use asbestos at the powerhouse. Although the court acknowledged that the evidence against O’Connor was weaker than perhaps other co-defendants, the motion was nevertheless denied.