O'Connor v. Aerco Int'l, Inc.

• Decision Date: 06 July 2017
• Citation: 152 A.D.3d 841,57 N.Y.S.3d 766
• Parties: Eileen A. O'CONNOR et al., Appellants, v. AERCO INTERNATIONAL, INC., et al., Defendants. and Fisher Scientific Company, LLC, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

152 A.D.3d 841

57 N.Y.S.3d 766

Eileen A. O'CONNOR et al., Appellants,

v. AERCO INTERNATIONAL, INC., et al., Defendants.andFisher Scientific Company, LLC, et al., Respondents.

Supreme Court, Appellate Division, Third Department, New York.

July 6, 2017.

Weitz & Luxenberg, PC, New York City (Gennaro Savastano of counsel), for appellants.

Hinkhouse Williams Walsh, LLP, Chicago, Illinois (Jason H. Nash, admitted pro hac vice) and Troutman Sanders, LLP, New York City (John T. Williams of counsel), for Fisher Scientific Company, LLC, respondent.

Marhall, Dennehey, Warner, Coleman & Goggin, Roseland, New Jersey (Arthur D. Bromberg of counsel), for Thomas Scientific, Inc., respondent.

Littleton, Joyce, Ughetta, Park & Kelly, LLP, Purchase (Denis J. Dozis of counsel), for VWR International, LLC, respondent.

Before: McCARTHY, J.P., GARRY, LYNCH, ROSE and DEVINE, JJ.

McCARTHY, J.P.

Appeals (1) from an order of the Supreme Court (Aulisi, J.), entered April 26, 2016 in Saratoga County, which, among other things, granted a motion by defendant

Fisher Scientific Company, LLC for summary judgment dismissing the complaint against it, (2) from an order of said court, entered April 26, 2016 in Saratoga County, which, among other things, granted a motion by defendant Thomas Scientific, Inc. for summary judgment dismissing the complaint against it, and (3) from an order of said court, entered April 26, 2016 in Saratoga County, which, among other things, granted a motion by defendant VWR International, LLC for summary judgment dismissing the complaint against it.

In February 2015, plaintiff Eileen A. O'Connor was diagnosed with pleural mesothelioma

. Alleging that her illness stemmed from exposure to equipment containing asbestos while working at the Westchester County Department of Labs and Research (hereinafter WCDLR) from approximately 1975 to 1979, O'Connor, along with her husband, derivatively, commenced this personal injury action in 2015 against, among others, defendants Fisher Scientific Company, LLC, Thomas Scientific, Inc. and VWR International, LLC (hereinafter collectively referred to as defendants). After joinder of issue and discovery, defendants each moved for summary judgment dismissing the complaint and all cross claims against them, contending, among other things, that plaintiffs failed to identify them as the suppliers of the asbestos-containing products in question. Thereafter, in three separate orders, Supreme Court respectively granted defendants' motions for summary judgment dismissing the complaint against them, finding that plaintiffs failed to adequately identify any defendants as the supplier of the asbestos-containing products at issue. Plaintiffs appeal, and we reverse.

In order to establish entitlement to judgment as a matter of law, defendants bore the initial burden of demonstrating that their respective products "could not have contributed to the causation" of O'Connor's asbestos-related injuries (Matter of New York City Asbestos Litig., 116 A.D.3d 545, 545, 984 N.Y.S.2d 45 [2014] ; see Matter of New York City Asbestos Litig., 216 A.D.2d 79, 80, 628 N.Y.S.2d 72 [1995] ). Moreover, a defendant cannot satisfy this burden by merely pointing to gaps in a plaintiff's proof (see Overocker v. Madigan, 113 A.D.3d 924, 925, 979 N.Y.S.2d 413 [2014] ; DiBartolomeo v. St. Peter's Hosp. of the City of Albany, 73 A.D.3d 1326, 1327, 901 N.Y.S.2d 389 [2010] ; Dow v. Schenectady County Dept. of Social Servs., 46 A.D.3d 1084, 1084, 847 N.Y.S.2d 711 [2007] ; Johnson City Cent. School Dist. v. Fidelity & Deposit Co. of Md., 272 A.D.2d 818, 821, 709 N.Y.S.2d 225 [2000] ). "Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers" ( Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986] ). Stated another way, a defendant cannot prevail on a motion for summary judgment merely by correctly arguing that the record before a court on the motion would be one which, if presented at trial, "would fail to [satisfy a plaintiff's] burden of proof and the court would be required to direct a verdict for defendant[ ]" ( Yun Tung Chow v. Reckitt & Colman, Inc., 17 N.Y.3d 29, 35, 926 N.Y.S.2d 377, 950 N.E.2d 113 [2011, Smith, J., concurring] ). Accordingly, plaintiffs' burden to establish a material issue of fact as to "facts and conditions from which [defendants'] liability may reasonably be inferred" is only triggered in the event that a moving defendant made the aforementioned prima facie showing ( Matter of New York City Asbestos Litig., 216 A.D.2d at 80, 628 N.Y.S.2d 72 ; see Scheidel v. A.C. & S., Inc., 258 A.D.2d 751, 754, 685 N.Y.S.2d 829 [1999], lv. denied 93 N.Y.2d 809, 694 N.Y.S.2d 631, 716 N.E.2d 696 [1999] ).

In this regard, the proof submitted by defendants, respectively, failed to establish that they did not sell asbestos-containing products to WCDLR during the time that O'Connor was employed or that O'Connor was not exposed to any such products (compare Pellegrino v. A.C. & S., Inc., 15 A.D.3d 377, 377, 789 N.Y.S.2d 535 [2005] ). Defendants submitted plaintiffs' responses to interrogatories, wherein plaintiffs listed the products containing asbestos that O'Connor was exposed to and stated that the products were supplied by defendants, among others. Fisher Scientific, in its response to plaintiffs' interrogatories, stated that, "given the passage of many decades and ... [its] adherence to reasonable and normal record retention policies," it did not have records of selling these products to WCDLR. However, although none of the deponents could attest to whether any of defendants' brand names, trademarks or logos were present on asbestos-containing products during the relevant time period, O'Connor and other WCDLR employees testified that there were products containing...