Koulermos v. A.O. Smith Water Products

Koulermos v A.O. Smith Water Prods. (2016 NY Slip Op 01913)

Koulermos v A.O. Smith Water Prods.

2016 NY Slip Op 01913

Decided on March 17, 2016

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 March 17, 2016
Friedman, J.P., Andrias, Saxe, Kapnick, JJ.

542 190406/14

[*1]Michael Koulermos, et al., Plaintiffs,

v

A.O. Smith Water Products, Defendant, National Grid USA, Defendant-Respondent, Courter & Company, et al., Defendants-Appellants.

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

Cullen & Dykman LLP, New York (John J. Burbridge of counsel), for respondent.

Order, Supreme Court, New York County (Peter H. Moulton, J.), entered August 17, 2015, which, inter alia, denied defendants Courter & Company's and Treadwell Corporation's motions for summary judgment dismissing defendant National Grid USA's cross claims against them, unanimously affirmed, without costs.

Courter and Treadwell failed to establish prima facie that plaintiff Michael Koulermos was not at the facility in question alongside their employees. Their contention rested on evidence of plaintiff's inability to remember precisely when he worked at the facility. However, pointing to gaps in an opponent's evidence is insufficient to demonstrate a movant's entitlement to summary judgment; Courter and Treadwell failed to present evidence, such as affidavits establishing when their employees were present at the facility and whether or not those employees used asbestos-containing products, to "affirmatively demonstrate the merit of [their] . . . defense" (Dalton v Educational Testing Serv. , 294 AD2d 462, 463 [2d Dept 2002]).

In any event, in opposition, defendant National Grid produced evidence showing when the facility was under construction and that during the construction Courter and Treadwell's employees were at the site for the installation of boilers and related equipment, a process that involved the use of asbestos-containing products and that occurred in plaintiff's vicinity.

We have considered Courter and Treadwell's remaining

arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 17, 2016

CLERK