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THE ISSUES ADDRESSED IN THIS COMPREHENSIVE ASBESTOS-MESOTHELIOMA OPINION INCLUDE: GENERAL CAUSATION; SPECIFIC CAUSATION; WHETHER THE CLOSING PREJUDICED THE JURY; AND THE APPORTIONMENT OF DAMAGES (FIRST DEPT).

The First Department, in a comprehensive opinion by Justice Gische, over a dissent, determined there was sufficient evidence of causation to raise a jury question in this asbestos-mesothelioma action. The issues addressed included: (1) general causation; (2) specific causation; (3) whether plaintiff’s counsel’s closing required a new trial; and (4) the apportionment of damages. The opinion is far too detailed and comprehensive to fairly summarize here:

The Court of Appeals recognized that precise information and exact details are not always available in toxic tort cases and they may not be necessary so long as there is “evidence from which a reasonable person could conclude” that the defendant’s offending substance “has probably caused” the kind of harm of which the plaintiff complains … . * * *

After each sides’ attorney highlighted the weaknesses in the other sides’ expert’s scientific evidence and authorities, it then became the province of the jury to weigh the evidence and decide which opinion was more credible … . There is no legal basis to disturb the jury’s findings and verdict in favor of plaintiff … . * * *

There is no basis, in this record, for a finding that the weight of the evidence presented at trial preponderated in favor of finding no specific causation. * * *

Plaintiff’s counsel’s summation comments were isolated remarks during a very lengthy summation. They were not pervasive, egregious or an obdurate pattern of remarks that inflamed the jury into believing that the focus of plaintiff’s exposure to asbestos contaminated talc was other than airborne particulants that she had breathed in for many years … . * * *

Issues raised by plaintiff on its cross appeal regarding the court’s calculation of offsets for payments made by the settling defendants … do have merit. General Obligations Law § 15-108 requires that a judgment be adjusted by subtracting the greater of other tortfeasors’ equitable share of the damages or the amount actually paid by them. Nemeth v Brenntag N. Am., 2020 NY Slip Op 02261, First Dept 4-9-20

 

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EASEMENT COVENANT CONCERNING A THREE INCH ENCROACHMENT WAS A PERMITTED EXCEPTION UNDER THE REAL ESTATE PURCHASE AGREEMENT AND COULD NOT SERVE AS A GROUND FOR DEMONSTRATING SELLER WAS NOT READY, WILLING AND ABLE TO SELL THE PROPERTY ON THE TIME OF THE ESSENCE DATE, SELLER ENTITLED TO SECURITY DEPOSIT AND ATTORNEY’S FEES (FIRST DEPT).
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OUT-OF-POSSESSION LANDLORD MAY BE LIABLE FOR PLAINTIFF’S SLIP AND FALL... NOTWITHSTANDING THE TENANT’S LEASE-OBLIGATION TO KEEP THE SIDEWALK FREE...