

Matter of New York Asbestos Litig. (2020 NY Slip Op 01392)





Matter of New York Asbestos Litig.


2020 NY Slip Op 01392


Decided on February 27, 2020


Appellate Division, First Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on February 27, 2020

Manzanet-Daniels, J.P., Kapnick, Gesmer, Oing, JJ.


11148 190173/15

[*1] In re New York Asbestos Litigation
Elvis Licul, et al., Plaintiffs-Respondents,
vA.O. Smith Water Products Co., et al., Defendants, Mario & DiBono Plastering Co., Inc., Defendant-Appellant.


Clyde & Co US LLP, New York (Uriel Carni of counsel), for appellant.
Weitz & Luxenberg, P.C., New York (Jason P. Weinstein of counsel), for respondents.

Order, Supreme Court, New York County (Manuel J. Mendez, J.), entered on or about March 18, 2019, which denied the motion of defendant Mario & DiBono Plastering Co., Inc. for summary judgment dismissing the complaint and all cross claims as against it, unanimously affirmed, without costs.
Plaintiffs' decedent died of mesothelioma allegedly caused by exposure to asbestos brought home by her husband from his jobsite. Defendant failed to meet its prima facie burden of establishing that decedent "could not have been exposed to its [spray-on fireproofing] products or the asbestos contained therein" (see Matter of New York City Asbestos Litig., 146 AD3d 700, 700 [1st Dept 2017]). Although plaintiffs' interrogatory responses did not mention spray-on fireproofing in their nonexhaustive list of possible exposure sources, decedent's husband did mention this at his deposition. While the husband's testimony is not entirely clear, his apparent inconsistencies merely create credibility issues that cannot be resolved at the summary judgment stage (see Latif v Eugene Smilovic Hous. Dev. Fund Co., Inc., 147 AD3d 507, 508 [1st Dept 2017]).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: FEBRUARY 27, 2020
CLERK


