Matter of New York City Asbestos Litig.

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Matter of New York City Asbestos Litig. 2019 NY Slip Op 03687 Decided on May 9, 2019 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on May 9, 2019
Friedman, J.P., Renwick, Kapnick, Kahn, Oing, JJ.
9284 190150/14

[*1]In re New York City Asbestos Litigation

George Benson, et al., Plaintiffs-Respondents,

v

A.O. Smith Water Products Co., et al., Defendants, Barnes & Jones, Inc., Defendant-Appellant.





McGivney, Kluger & Cook, P.C., New York (Erin N. Miter of counsel), for appellant.

Weitz & Luxenberg, P.C., New York (Pierre A. Ratzki of counsel), for respondents.



Order, Supreme Court, New York County (Manuel J. Mendez, J.), entered September 18, 2018, which denied defendant Barnes & Jones's motion for summary judgment dismissing the complaint against it, unanimously affirmed, without costs.

Assuming Barnes & Jones established prima facie entitlement to summary judgment based on its executive's affidavit and its manufacturer catalogs indicating that none of its steam traps warrant the use of flanges such that they could not have contributed to plaintiff's injuries, plaintiff's deposition testimony, together with Barnes & Jones's interrogatory response, admitting that some of its pre-1975 steam traps contained asbestos gaskets, raised an issue of fact as to whether plaintiff was in fact exposed to asbestos dust while working on Barnes & Jones steam traps. Plaintiff unhesitatingly recalls working with gaskets with the brand name Barnes & Jones that produced breathable dust when he cut or dislodged them during the course of his work (Matter of New York City Asbestos Litig., 146 AD3d 700 [1st Dept 2017]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MAY 9, 2019

CLERK