News & Updates

Failure to Attach Catalogues Confirming No Distribution of Asbestos-Containing Product Leads to Denial of Summary Judgment NYCAL, March 11, 2015

In this case, the plaintiff claims that he was exposed to two asbestos-containing products, Stic-Tite and Do-All, which he testified defendant W.W. Grainger, Inc. distributed between 1980 and 1995. Grainger moved for summary judgment, claiming that it never distributed the two products during that time period, relying on an affidavit from a Grainger employee who stated, “I can state that Grainger did not manufacture, sell, or distribute a product called 'Stic-Tite' or a product called 'Do-All' from 1980-1995.”

The court concluded that the Grainger employee statement, without submission of any corroborative documentary evidence, was insufficient: “The First Department recently confirmed in DiSalvo v A.O. Smith Water Products, 123 AD3d 498 (1st Dept 2014) that conclusions made via affidavit which lack any factual basis cannot form the basis of a summary judgment motion. Id. at 499 (citing JMD Holding Corp. v Congress Fin. Corp., 4 NY3d 373, 384-385 [2005]). Here, not a single Grainger catalog, invoice, or otherwise relevant document has been made part of the record.” In absence of this proof, the court concluded that it becomes a credibility issue between two witnesses, which cannot be decided on summary judgment: “As the record currently stands, the court essentially has before it nothing more than conflicting assertions: on the one hand Mr. Brigantino’s deposition testimony that he purchased asbestos-containing Stic-Tite and Do-All from Grainger from 1980-1995, and on the other Mr. Adams’ certification that Grainger did not sell Stic-Tite or Do-All during this time period. Under well-settled New York law, the respective weight to be given to such competing assertions must be decided by a jury at trial.”

Read the full decision here

 If you have questions about how this case may impact your business, please contact: