Weinberg v. Johns-Manville Products Corp. ( 1979 )

— Order, Supreme Court, New York County, entered May 5, 1978, denying the motion by defendant Owens-Corning Fiberglas Corp. for summary judgment dismissing the complaint and all cross claims against it, reversed, on the law, without costs or disbursements and the motion granted. The complaint, directed at 18 named manufacturers and sales corporations associated with the manufacture and distribution of asbestos products, alleges that plaintiffs decedent died after contracting malignant mesothelioma as a result of exposure to asbestos products during the period decedent was employed at the Sparrows Point Shipyard in Baltimore, Maryland, and Bethlehem Steel Shipyard, Hoboken, New Jersey. Defendants allegedly manufactured, supplied and sold asbestos and asbestos products to the Sparrows Point Shipyard. In answer to interrogatories propounded by defendant Johns-Manville, plaintiff stated that decedent came into contact with asbestos products while employed by Bethlehem Steel at the Sparrows Point Shipyard from 1941 to 1945 and at the Hoboken Shipyard from 1947 to 1948. Owens-Corning thereupon moved for summary judgment dismissing the complaint and all cross claims asserted against it, supported solely by the affidavit of its vice-president, finance and law, stating "Upon information after reasonable research of all available records, Owens-Corning Fiberglas Corporation first began to manufacture, distribute and sell insulation products containing asbestos subsequent to April 1, 1953, to the best of his knowledge and belief; and * * * neither manufactured, distributed nor sold” such products before that date. The only opposition to the motion was by codefendant Johns-Manville Sales Corporation (JohnsManville), noting (1) the existence of a cross claim by Johns-Manville against Owens-Corning for contribution and apportionment of responsibility; (2) the fact that Owens-Corning’s motion was supported by affidavit made on information and belief; (3) no discovery had thus far been held to determine when Owens-Corning first began to manufacture and sell asbestos insulation products, a matter peculiarly within the knowledge of Owens-Corning. Special Term denied the motion as premature, observing that the answers to interrogatories were not conclusive and could be amended upon subsequent application, stating: "During the course of discovery it may well develop that there were other substantial periods of exposure and that some of these involved the period during which Owens-Corning was involved with asbestos products.” This, however, is not dispositive. We note the failure of plaintiff to oppose the motion for summary judgment as evincing a lack of basis for instituting the litigation against Owens-Corning. Plaintiff’s responses to the Johns-Manville interrogatories made no assertions that Owens-Corning manufactured, sold or distributed asbestos products during the pertinent periods. Although defendant Johns-Manville did appear in opposition to the motion, neither it nor plaintiff nor any other respondent has appeared in opposition to this appeal. Where the parties or their attorneys show no interest in continuing to litigate the claim, the burden of representation should not be shifted to the courts. We do not quarrel with the theory of the dissent that summary judgment searches the record. But, unlike the dissent, we see no need to reach out to preserve for subsequent motion practice or trial the claim against Owens-Corning where plaintiff in effect abandoned the action as against that defendant on the motion and where no respondent appeared in opposition to this appeal. Such a position is not unlike perpetuating a lawsuit where a party is in default and has shown no interest in litigating the claim. Moreover, while the moving affidavits are made on information and belief, they do make out a prima facie showing that the moving defendant was not engaged in the manufacture of the offending product at the time relevant to plaintiff’s claim. Since the sole party opposing the motion below, not the plaintiff but defendant Johns-Manville, produced no evidence, even on information and belief, that would controvert movant’s showing, no triable issue was generated. Although the moving affidavit is carefully couched, it is that of a corporate officer relating to a search of records going back over 30 years. It is entitled to at least prima facie credence as to what those records show, sufficient to support summary judgment in the absence of even token opposition. In the circumstances of this case, where not an iota of evidence controverts appellant’s disclaimer that it manufactured the asbestos, the court system and appellant should not be burdened with the continued joinder of Owens-Corning Fiberglas Corp. It is obvious that plaintiff joined appellant without any basis for doing so and, once appellant has pointed that out, the plaintiff is content to pursue its claims against the numerous other defendants that she has joined. Concur — Murphy, P. J., Silverman, Evans, and Fein, JJ.