Supreme Court of New York, New York County; January 14, 2022

In this asbestos-related action, defendant Dykes Lumber Company, Inc., filed a motion to dismiss on the grounds that the plaintiff failed to establish that he was exposed to asbestos from joint compound sold by Dykes Lumber or, alternatively, that there was insufficient evidence to establish specific causation. Dykes Lumber argued that the plaintiff’s deposition testimony was insufficient to identify any of the products Dykes Lumber sold, and further, that any exposure the plaintiff had to an asbestos-containing product sold by defendant was limited, de minimis exposure. In support of the motion, Dykes Lumber offered the report of industrial hygienist, Dr. Sheldon Rabinovitz, who opined that “within a reasonable degree of scientific certainty … the plaintiff was not exposed to a dose of asbestos that would increase his risk of developing lung cancer.”

In opposition, the plaintiff alleged that defendant Dykes Lumber failed to establish that its joint compound product could not have exposed the plaintiff to asbestos and could not have caused the plaintiff’s illness. The plaintiff further argued that the evidence established that the plaintiff used asbestos-containing joint compound products that were supplied by Dykes Lumber.

The court noted that summary judgment is a drastic remedy and should only be granted if the moving party has sufficiently established that it is warranted as a matter of law. SeeAlvarez v Prospect Hosp., 68 NY2d 320, 324, 501 N.E.2d 572, 508 N.Y.S.2d 923 (1986). “The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case.” Winegrad v New York University Medical Center, 64 NY2d 851, 853, 476 N.E.2d 642, 487 N.Y.S.2d 316 (1985). Additionally, summary judgment motions should be denied if the opposing party presents admissible evidence establishing that there is a genuine issue of fact remaining. SeeZuckerman v City of New York, 49 NY2d 557, 560, 404 N.E.2d 718, 427 N.Y.S.2d 595 (1980). The court’s role is “issue-finding, rather than issue-determination.” Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404, 144 N.E.2d 387, 165 N.Y.S.2d 498 (1957) (internal quotations omitted).

Furthermore, the Appellate Division, First Department, has held that “[t]he deposition testimony of a litigant is sufficient to raise an issue of fact so as to preclude the grant of summary judgment dismissing the complaint. The assessment of the value of a witnesses’ testimony constitutes an issue for resolution by the trier of fact, and any apparent discrepancy between the testimony and the evidence of record goes only to the weight and not the admissibility of the testimony.” Dollas v W.R. Grace and Co., 225 AD2d 319, 321, 639 N.Y.S.2d 323 (1st Dep’t 1996) (internal citations omitted).

The court found that here the plaintiff testified to working with joint compound obtained from Dykes Lumber [ ], and Dykes Lumber failed to proffer any evidence to establish that its joint compound did not contain asbestos or that it could not have caused the plaintiff’s illness. As the moving defendant failed to establish entitlement for summary judgment, the motion was denied.

Read the full decision here.