Matter of New York City Asbestos Litig. , 146 A.D.3d 700 ( 2017 )

Matter of New York City Asbestos Litig. (2017 NY Slip Op 00572)

Matter of New York City Asbestos Litig.

2017 NY Slip Op 00572

Decided on January 26, 2017

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on January 26, 2017
Friedman, J.P., Richter, Saxe, Moskowitz, Kapnick, JJ.

2903 190272/14

[*1]In re New York City Asbestos Litigation

Susan Krok as Administratrix for the Estate of Raymond J. Krok, Sr., etc., Plaintiff-Respondent,

v

AERCTO International, Inc., et al., Defendants, The Nash Engineering Company, Defendant-Appellant.

McGivney & Kluger, P.C., New York (Kerryann M. Cook of counsel), for appellant.

Weitz & Luxenberg, P.C., New York (Chris Romanelli of counsel), for respondent.

Order, Supreme Court, New York County (Peter H. Moulton, J.), entered April 12, 2016, which denied defendant Nash Engineering Company's motion for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs.

Defendant failed to establish prima facie that plaintiff's decedent could not have been exposed to its products or the asbestos contained therein (see Koulermos v A.O. Smith Water Prods., 137 AD3d 575 [1st Dept 2016]). Its reliance on the decedent's inability to identify its product as a source of his

exposure to asbestos is misplaced (see id.; Salerno v Garlock Inc., 212 AD2d 463 [1st Dept 1995]). In any event, plaintiffs raised an issue of fact by submitting evidence that defendant's asbestos-containing pumps were present on the ship to which the decedent was assigned as a boiler tender fireman.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JANUARY 26, 2017

CLERK