Matter of New York City Asbestos Litig. , 1 N.Y.S.3d 201 ( 2014 )

Matter of New York City Asbestos Litig. (2014 NY Slip Op 08719)

Matter of New York City Asbestos Litig.

2014 NY Slip Op 08719

Decided on December 11, 2014

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 December 11, 2014
Gonzalez, P.J., Tom, Friedman, Acosta, Moskowitz, JJ.

13746 190109/10

[*1] In re New York City Asbestos Litigation

Carl A. DiSalvo, Plaintiff-Respondent,

v

A.O. Smith Water Products, et al., Defendants, Neles-Jamesbury, Inc., Defendant-Appellant.

Drinker Biddle & Reath LLP, Florham Park, NJ (Stephen R. Long of the bar of the State of New Jersey, admitted pro hac vice, of counsel), for appellant.

Weitz & Luxenberg, P.C., New York (Pierre A. Ratzki of counsel), for respondent.

Order, Supreme Court, New York County (Sherry Klein Heitler, J.), entered September 11, 2013, which denied the motion of defendant Neles-Jamesbury, Inc. for summary judgment dismissing the complaint and all cross claims as against it, unanimously affirmed, without costs.

Defendant failed to meet its initial burden of establishing prima facie that its product could not have contributed to the

causation of plaintiff's asbestos-related injury (see Comeau v W.R. Grace & Co.—Conn., 216 AD2d 79, 80 [1st Dept 1995]; Reid v Georgia-Pacific Corp., 212 AD2d 462 [1st Dept 1995]). While defendant's representative proffered an affidavit in which he states that it was impossible for plaintiff to have observed valves with the name Neles-Jamesbury, the affidavit was conclusory and without specific factual basis, and thus did not establish the prima facie burden of a proponent of a motion for summary judgment (see JMD Holding Corp. v Congress Fin. Corp., 4 NY3d 373, 384—385 [2005]).

We decline to consider defendant's argument that it did not have a duty to warn of asbestos in the insulation used on its valves, a product that it did not manufacture, as the argument was made for the first time on appeal (see Gonzalez v Fidelity & Deposit Co. of Maryland, 119 AD3d 432 [1st Dept 2014]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 11, 2014

CLERK