The First Department, reversing Supreme Court, determined the defendant’s motion for summary judgment in this asbestos -injury case should not have been granted and, alternatively, even if the motion were properly granted, leave to renew should have been granted based on additional evidence:
In connection with a motion for summary judgment in an action based on exposure to asbestos, defendant has the initial burden of showing “unequivocally” that its product could not have contributed to the causation of decedent’s asbestos-related injury … .
Defendant Burnham failed to sustain its initial burden of demonstrating that its products could not have contributed to decedent’s mesothelioma. Decedent’s testimony identified defendant as the manufacturer of greenhouses in which he worked and cited three possible sources of asbestos: transite benches in the greenhouses, window glazing and the greenhouse boiler. Burnham provided no evidence demonstrating that its products could not have been the source of the asbestos that caused decedent’s illness. It only pointed to gaps in plaintiffs’ proof, which was insufficient to meet its burden … . Even if the burden had shifted, plaintiffs’ evidence in opposition raised an issue of fact as to whether Burnham had sold, distributed, and recommended asbestos-containing products such as those used in plaintiffs’ family’s gardening business. While hearsay, that evidence could be considered by the court since it was not the sole basis of the opposition … .
Alternatively, even if the summary judgment motion had been properly granted, the court should have granted leave to renew in the interests of fairness and justice since plaintiffs presented an affidavit of decedent’s estranged brother, which supplied crucial evidence linking decedent’s illness to Burnham’s products. Fischer v American Biltrite, Inc., 2020 NY Slip Op 03277, First Dept 6-11-20