Supreme Court of New York, Appellate Division, First Department, April 20, 2021

In this matter, Judge Manuel Mendez, former NYCAL coordinating judge, denied defendant Kaiser Gypsum Company, Inc’s motion for summary judgment on January 13, 2020. Kaiser Gypsum appealed arguing that plaintiffs failed to identify defendant’s products as a source of the decedent’s alleged exposure to asbestos. Further, the only evidence presented was the inadmissible hearsay statement of a coworker of the decedent and his son when they were working together at some point from 1972 to 1974 that they were using Kaiser Gypsum joint compound.

The Appellate Division noted that this hearsay statement does not qualify as a present sense impression. Further, there was nothing in the statement to indicate that it described an even tor condition that the coworker perceived. Rather, it simply reflected the coworker’s understanding of a fact, that is, the brand of the joint compound that he and decedent were using, without any indication of the source of his knowledge.

Consequently, the Appellate Division reversed Judge Mendez’s decision and granted Kaiser Gypsum’s motion for summary judgment.

Read the full decision here.