Corporate Representative Affidavit Found Insufficient in Connection with NYCAL Summary Judgment Motion | Goldberg Segalla

Court: Supreme Court of New York, New York County

In this asbestos action, decedent Willie Hollingsworth alleged he was exposed to asbestos from valves manufactured by Clow. Defendant McWane Inc., on behalf of its unincorporated division Clow Valve Company, moved for summary judgment.

Defendant argued that Clow valves could not have caused or contributed to decedent’s injury. Defendant argued that plaintiff did not sufficiently identify Clow valves as a source of asbestos exposure. Plaintiff opposed defendant’s motion, citing plaintiff’s testimony identifying Clow valves and failing to submit any expert reports in support of its motion.

With regard to the motion for summary judgment, the court first noted that “summary judgment is a drastic remedy and should only be granted if the moving party has sufficiently established that it is warranted as a matter of law.” Further, “summary judgment is rarely granted in negligence actions unless there is no conflict at all in the evidence.” Thereafter, the court explained that Dyer v. Amchem is the appropriate standard for summary judgment in New York. In Dyer, the defendants met their burden “by affirmatively prov[ing], as a matter of law, that there was no causation.”

Here, the court found that defendant did not meet its burden on summary judgment. Defendant submitted a corporate representative affidavit in support of its motion. However, the court set forth that the “eight-sentence affidavit is a general one and does not establish with certainty that a Clow valve could not have been in use at the time of Mr. Hollingsworth’s exposure.” The court further explained that defendant “proffers no other evidence that Mr. Hollingsworth’s description could not have applied to a Clow valve or that Clow valves did not contain asbestos.”  Thus, the court denied the motion.

Read the full decision here

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