Supreme Court of New York, New York County; January 18, 2022

In this matter, the plaintiff filed an asbestos-related personal injury action against defendant American Biltrite alleging that the decedent was exposed to asbestos from working with American Biltrite floor tiles. American Biltrite moved for summary judgment to dismiss the action, and the motion was denied. American Biltritethen moved to reargue the decision denying its motion.

To begin, CPLR 2221(d)(2) permits a party to move for leave to reargue a decision upon a showing that the court misapprehended the law or facts in rendering its initial decision. “A motion for leave to reargue pursuant to CPLR 2221 is addressed to the sound discretion of the court and may be granted only upon a showing that the court overlooked or misapprehended the facts or the law or for some reason mistakenly arrived at its earlier decision.” William P. Pahl Equip. Corp. v Kassis, 182 AD2d 22, 27, 588 N.Y.S.2d 8 (1st Dep’t 1992), appeal denied in part, dismissed in part 80 NY2d 1005 (1992) (internal quotations omitted).

Here, American Biltrite argued that the evidence failed to show that cutting asbestos-containing floor tiles released sufficient levels of chrysotile fibers to cause the decedent’s illness. The defendant argued that the court’s reliance upon the plaintiff’s expert report of Dr. Mark Ginsburgwas mistaken, since the report did not quantify the decedent’s asbestos exposure and, thus, failed to establish that the decedent was exposed to a sufficient level of asbestos to cause his lung cancer.

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). “In determining whether summary judgment is appropriate, the motion court should draw all reasonable inferences in favor of the nonmoving party and should not pass on issues of credibility.” Garcia v J.C. Duggan. Inc., 180 AD2d 579, 580, 580 N.Y.S.2d 294 (1st Dep’t 1992), citing Dauman Displays, Inc. v Masturzo, 168 AD2d 204, 562 N.Y.S.2d 89 (1st Dep’t 1990). 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).

Here, the court found that an issue of fact was present, as well as a clear conflict in the evidence, which precluded summary judgment.The court pointed out that Dr. Ginsburg’s report detailed the visible dust particles and the asbestos fiber concentrations contained in such visible dust, which the decedent testified that he saw and breathed in as he was performing the duties of his job. The court found that American Biltrite failed to establish that the court misapprehended or overlooked the facts or law in determining that issues of fact existed to preclude summary judgment.

As such, the court held that the report of Dr. Ginsburg was sufficient to establish an issue of fact to preclude summary judgment, and denied American Biltrite’s motion to reargue.

Read the full decision here.