Preview
FILED: NEW YORK COUNTY CLERK 12/28/2019 03:24 PM INDEX NO. 190149/2018
NYSCEF DOC. NO. 159 RECEIVED NYSCEF: 12/28/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK Index No.: 190149-18
________________ _____________________ x
In Re: NEW YQRK CITY ASBESTOS LITIGATION PLAINTIFF'S OPPOSITION
------------- ¬---------- x TO.ABEX'S MOTION FOR
This Document Relates To: SUMMARY JUDGMENT
RAYMOND M. GERAGHTY
------------------ --- x
CHRIS ROMANELLI, an attorney duly admitted to practice law before the
Courts of the State of New York, affirms, under the penalties of perjury pursuant to CPLR §
2106 that the following statements are true, except for those made upon information and
belief:
1. I am an attorney at law licensed to practice in the State of New York. I am
associated with the law firm of Weitz & Luxenberg, P.C., counsel for plaintiff in this action. I
am fully familiar with the facts and circumstances of this action.
2. This affirmation is submitted in opposition to the motion for summary
judgment submitted by defendant PNEUMO ABEX LLC ("Abex") who made a variety of brake
materials that were asbestos that were parts of the heavy equipment plaintiff was exposed to.
3. Abex's motion must be denied because there are questions of fact that
require a trial. First, flouting the black letter law requirement of CPLR 3212, Abex motion is
unsupported affidavit of a person with personal knowledge of the matters at issue
entirely by any
in this case.
LAW OFFICES
OF
WEITZ
&
LUXENBERG,P.C.
700 BROADWAY
NEW YORK, NY 10003
1 of 12
FILED: NEW YORK COUNTY CLERK 12/28/2019 03:24 PM INDEX NO. 190149/2018
NYSCEF DOC. NO. 159 RECEIVED NYSCEF: 12/28/2019
4. Second, Abex's motion for summary judgment should be denied because
voluminous documentary evidence, obtained from the defendant in prior asbestos litigation
against demonstrates that it manufactured and sold asbestos-
Abex, contemporaneously
containing brake and linings to be branded as original and aftermarket equipment, to the crane
manufacturers from which Mr. Geraghty alleges asbestos exposure.
I. BACKGROUND
5. Raymond M. Geraghty is a 56-year old man who is living with lung
cancer. His case is part of the New York City Asbestos Litigation April 2019 in extremis group.
He was diagnosed with lung cancer in April of 2018. See Path Rpt., Exh. 1.
6. He is alive and ready to testify at trial.
7. Specifically, for the purposes of this motion, and as demonstrated below,
Mr. Geraghty was exposed to asbestos while working on or around the asbestos brakes of a
variety of types of heavy equipment during his career as a heavy equipment operator and
mechanic starting in 1981. See Interrog. Resp. at 10, 22, Exh. 2; See also deposition of Raymond
Geraghty at 64-66, Exh. 3. That work caused airborne asbestos dust to be generated in his
breathing zone beginning throughout this time.
LAWOFFICES
OF
WEITZ
&
LUXENBERG,P.C.
700 BROADWAY
NEW YORK, NY 10003
2
2 of 12
FILED: NEW YORK COUNTY CLERK 12/28/2019 03:24 PM INDEX NO. 190149/2018
NYSCEF DOC. NO. 159 RECEIVED NYSCEF: 12/28/2019
H. FACTS
A. Mr. Geraghty was exposed to
asbestos from working on the
asbestos brakes of a
variety of pieces of heavy equipment
1. Battery Park City
8. Mr. worked at Park City from approximately 1981 until
Geraghty Battery
1985. Tr. at 84. Exh. 3. There he was exposed to asbestos from brakes
approximately Geraghty
drum"
where he "deglazed i.e.,"to take the shine off the brake and and he "blew out the
brakes",
brakes". Geraghty Tr. at 85-87, Exh. 3.
9. There he was exposed to asbestos this way from over 20 cranes made by
Groves."
companies such as "P and Hs, Manitowocs, Bucyrus Eries . .. and Link-Belt . .. [and]
Tr. at Exh. 3. He also recalled Bendix as a manufacturer of brake replacements.
Geraghty 87-89,
Id. at 93, Exh. 3.
2. North River Pollution Treatment Plant on 125th
Street in Manhattan
10. Mr. did the same type of brake work at this location between in
Geraghty
the on a Manitowoc crane and was similarly exposed to asbestos. See Geraghty Tr.
mid-1980s,
at 112-120, Exh. 3.
LAW OFFICES
OF
WEITZ
&
LUXENBERG,P.C.
700 BROADWAY
NEW YORK, NY 10003
3 of 12
FILED: NEW YORK COUNTY CLERK 12/28/2019 03:24 PM INDEX NO. 190149/2018
NYSCEF DOC. NO. 159 RECEIVED NYSCEF: 12/28/2019
3. World Wide Plaza
11. Mr. Geraghty worked at World Wide Plaza on
50th
St. and
8th
Ave k
Manhattan in the late 1980s where he was a maintenance man on a "A 1900 Link-Belt tower
crane.''
Geraghty Tr. at 124-129, Exh. 3.
4. NYU Hospital between 1991 and 1992
12. At this location Mr. did the same type of work on and was
Geraghty
exposed to asbestos from asbestos brakes on Mantiowoc and Kodiak cranes. See Geraghty Tr. at
134-142, Exh. 3.
B. Abex submits no facts in support of its motion
13. As argued flouting CPLR 3212, Abex does not provide any
below,
affidavit someone with knowledge of the facts in support of its motion. Itsmotion should be
by
denied on this basis alone.
14. neither Abex's memorandum of law nor the attorney
Importantly, however,
affirmation submitted its own counsel that Abex contemporaneously manufactured, sold
by deny
and distributed brakes to the manufacturers Mr. Geraghty identified being
asbestos-containing
exposed to asbestos from. This is because Defense counsel has no personal knowledge of the
1)
facts and is incapable of such assertions, and; such a claim would be false.
making 2)
LAW OFFICES
OF
WEITZ
&
LUXENBERG,P.C.
700 BROADWAY
NEW YORK, NY 10003
4 of 12
FILED: NEW YORK COUNTY CLERK 12/28/2019 03:24 PM INDEX NO. 190149/2018
NYSCEF DOC. NO. 159 RECEIVED NYSCEF: 12/28/2019
C. Abex supplied asbestos containing friction material to the
heavy eauin_ment manufacturers at issue
15. In September 2013, Counsel for Abex supplied this office with a "hard
drive,"
worth of invoices that referenced Abex sales of asbestos-containing friction materials to
various manufacturers. See email exchange Exh. 4.
16. Included in this production were invoices the sale of asbestos-
evidencing
containing brake linings to: P&H, Bucyrus-Erie, Link-belt, and Bendix during the
contemporaneous time period.
17. Attached as Exhibit 5 are documents and sales invoices evidencing that
Abex contemporaneously supplied P&H with asbestos-containing friction materials.
18. Attached as Exhibit 6 are documents and sales invoices evidencing that
Abex contemporaneously supplied Bucyrus Erie with asbestos-containing friction materials.
19. Attached as Exhibit 7 are documents and sales invoices evidencing that
Abex contemporaneously supplied Link Belt with asbestos containing friction materials.
20. Attached as Exhibit 8 are documents and sales invoices evidencing that
Abex contemporaneously supplied lVlanitowoc with substantial amounts of asbestos-containing
friction materials.
21. Attached as Exhibit 9 are 1981 Closing reports demonstrating that Abex
supplied asbestos-containing friction materials to Bendix, among others.
22. In a similar case, Abex made a similar motion. It was denied. See Olori v.
Abex, No. 2588/2014, (Sup. Ct. Sullivan Cty., Jan. 12, 2016) (Aulisi, J. )Exh. 10.
LAW OFFICES
OF
WEITZ
&
LUXENBERG,P.C.
700 BROADWAY
NEW YORK, NY 10003
.5
5 of 12
FILED: NEW YORK COUNTY CLERK 12/28/2019 03:24 PM INDEX NO. 190149/2018
NYSCEF DOC. NO. 159 RECEIVED NYSCEF: 12/28/2019
III. ARGUMENT
A. It is defêñdant's burden to estáblish that its
products could not have contributed to the olaintiff's disease
23. A defendant moving for summary judgment must firstestablish itsprima
facie entitlement to judgment as a matter of law by demonstrating the absence of material issues
of fact. Vega v. Restani Const. C_orp., 18 N.Y.3d 499, 502-503 (2012)_"This burden is a heavy
one and on a motion for suilliiiary judgment, facts must be viewed in the light most favorable to
party"
the.non-moving Jacobson v. New York City Health and Hosoitals Corporation. 22 N.Y.3d
824, 833 (2015). "Summary judgment may not be obtained by pointing to gaps in a plaintiffs
prof and therefore, a motion must be denied regardless of the sufficiency of plaintiffs opposing
papers"
Torres v. Indus. Container, 305 A.D.2d 136 (1st Dep't 2003).
LAW OFFICES
OF
WEITZ
&
LUXENBERG,P.C.
700 BROADWAY
NEW YORK, NY 10003
6 of 12
FILED: NEW YORK COUNTY CLERK 12/28/2019 03:24 PM INDEX NO. 190149/2018
NYSCEF DOC. NO. 159 RECEIVED NYSCEF: 12/28/2019
24. In the asbestos context, New York's Appellate Division First Department
reiterated this in Koulermos v. A.O. Smith Water Prods., where itwas held pointing to gaps in an
judgment."
opponent's evidence is insufficient to demonstrate a movant's entitlement to summary
137 A.D.3d 575, 576 (1st Dep't 2016) The court further noted that the failure to present
evidence, such as affidavits, which affirmatively demonstrate the merit of the defense, is enough
to deny summary judgment. An affidavit from a corporate representative which is "conclusory
basis"
and without specific factual does not meet the burden. DiSalvo v. A.O. Smith Water
Prods. Co., 123 A.D.3d 498, 499, (1st Dep't 2014). Summary judgment must be denied where a
defendant fails "to unequivocally establish that itsproduct could not have contributed to the
injury" (1st
causation of plaintiffs Reid v. Georgia Pacific Corp., 212 A.D.2d 462, 463 Dep't
1995).
25. A movant who fails to meet itsprima facie burden is prohibited "from
reply."
remedying basic deficiencies in its prima facie showing by submitting evidence in
Kennelly v. Mobius Realty Holdings, LLC, 33 AD3d 380 (1st Dep't 2006); see also Dannasch v.
Bifulco, 184 AD2d 415 (1st Dep't 1992).
26. Denial of summary judgment based on the circumstantial product
identification of a defendant's product was recently upheld by New York's Appellate Division,
First Department in the asbestos context by Krok v. The Nash Eng. Co., 146 A.D.3d 700 (1st
Dep't 2017).
LAW OFFICES
OF
WEITZ
&
LUXENBERG,P.C.
700 BROADWAY
NEW YORK, NY 10003
7 of 12
FILED: NEW YORK COUNTY CLERK 12/28/2019 03:24 PM INDEX NO. 190149/2018
NYSCEF DOC. NO. 159 RECEIVED NYSCEF: 12/28/2019
27. There "Defendant failed to establish prima facie that plaintiffs decedent
products."
could not have been exposed to its Krok at 700. The First Department further held that
when plaintiff introduced ship records identifying the defendant's products contemporaneously
with the decedent's testimony that he worked on (but could not name) various pumps, summary
judgment was properly denied. Id.
28. Here, the moving defendant submitted an affidavit in support of itsmotion
but itis not clear whether the affirmation is based on personal knowledge as opposed to a review
of other evidence, such as documents and testimony. Accordingly, summary judgment must be
denied.
B. Abex's matian must be denied as there are auestions of fact
29. It isclear that defendant's motion for summary judgment should be
denied. It iswell-settled in New York that the court must view allof the evidence in the light
most favorable to the nonmovant. Henderson v. City of New York, 178 A.D.2d 129, 576
N.Y.S.2d 562, 564 (1st Dep't 1991); McLaughlin v. Thaima Realty Com, 161 A.D.2d 383, 384,
remedy"
555 N.Y.S.2d 125 (1st Dep't 1990). Moreover, summary judgment is a "drastic that
doubt"
must not be granted if there is "any about the existence of a triable issue of fact. Reid v.
(1st
Georgia Pacific Corp., 212 A.D.2d 462, 622 N.Y.S.2d 946 Dep't 1995). Accord Field v.
Waldbaum, Inc., 35 A.D.2d 652, 653, 827 N.Y.S.2d 253, 255 (2d Dep't 2006); Jones v. Surrey
Coop. Apts., Inc., 263 A.D.2d 33, 37, 700 N.Y.S.2d 118, 121 (1st Dep't 1999) (reiterating that,
"on [a] motion for summary judgmeñt itwas the movant's burden to establish the non-existence
LAW OFFICES
OF
WEITZ
&
LUXENBERG,P.C.
700 BROADWAY
NEW YORK, NY 10003
8
8 of 12
FILED: NEW YORK COUNTY CLERK 12/28/2019 03:24 PM INDEX NO. 190149/2018
NYSCEF DOC. NO. 159 RECEIVED NYSCEF: 12/28/2019
of those elements") (court's eniphasis; omitting internal citations).
parties'
30. In a case such as this one, where at best the rendition of the facts
conflicts, suiñüiary judgment must be denied. See Rosario v. Benmereui, 6 A.D.3d 311, 775
N.Y.S.2d 133 (1st Dep't 2004) ("denying summary judgment on liability Inasmuch as the
conflicting deposition testimony raises triable issues"); In re Eighth Judicial Dist. Asbestos
Litigation, 269 A.D.2d 749, 703 N.Y.S.2d 416 (4th Dep't 2000)(reversing grant of summary
judgment holding trial court improperly resolved issues of credibility).
31. Thus, for instance, the Appellate Division in Seifert v. Arlona Co., 205
A.D.2d 679, 613 N.Y.S.2d 643 (2d Dep't 1994), ruled that "[i]t is impossible to determine the
parties'
contractual intention from the evidence submitted without assessing the credibility of the
motion."
witnesses. Thus, the Supreme Court properly denied Dumor's summary judgment 205
A.D.2d at 680; see also Cochrane v. Owens-Corning Fiberglass Corp., 219 A.D.2d 557, 631
(1st
N.Y.S.2d 358, 360 Dep't 1995) (similarly holding that, in the context of summary judgment
proceedings, "[t]he credibility of the parties is not an appropriate consideration for the court . ..,
and statements made in opposition to the motion must be accepted as true").
C. The court deciding summary judgmcat only need
find issues not determine them
32. In the same vein, the First Department has unequivocally ruled that "[t]he
deposition testimony of a fitigant is sufficient to raise an issue of fact so as to preclude the grant
witnesses'
of summary judgment dismissing the complaint . .. . The assessment of the value of a
testimony [here, the plaintiff himselfj constitutes an issue for resolution by the trierof fact, and
LAW ORCES
WEITZ
&
LUXENBERG,P.C.
700 BROADWAY
NEW YORK, NY 10003
9 of 12
FILED: NEW YORK COUNTY CLERK 12/28/2019 03:24 PM INDEX NO. 190149/2018
NYSCEF DOC. NO. 159 RECEIVED NYSCEF: 12/28/2019
any apparent discrepancy between the testimony and the evidence of record goes only to the
testimony."
weight and not the admissibility of the Dollas v. W.R. Grace & Co., 225 A.D.2d 319,
(13t
321 Dep't 1996); see also Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404
(1957); Wiener v Ga-Ro Die Cuttine, 104 AD2d 331, 333 (1984), aff'd 65 NY2d 732, (holding
any conflict between plaintiff's allegations and the defendant's purported evidence merely
presents an issue of credibility for resolution at trial); Cohn v Lionel Corp., 21 NY2d 559, 563
(1968) see also, Patrolmen's Benevolent Assn. v City of New York, 27 NY2d 410, 415 (1984).
Accord Alvarez v. New York City Housing Authority, 295 A.D.2d 225, 226 (1st Dep't.
2002)("Any inconsistencies in the several accounts of the incident go to the weight of the
evidence, not its competence, and the value to be accorded to the evidence is a matter for
resolution by the trier of fact.")
33. This is particularly true in asbestos cases where the testimony presented is
typically of remote events given by dying witnesses. Dollas, 225 A.D.2d at 319. Moreover, "any
apparent discrepancy between the testimony and the evidence of record goes only to the weight
testimony."
and not the admissibility of the Dollas at 321, citing Rivera v. City of New York, 212
A.D.2d 403, 404 (1st Dep't 1995).
34. It isalso well-settled that, in personal injury litigation, the plaintiff is not
required to show the precise cause of his damages, but only facts and conditions from which
defendant's liability can be reasonably inferred. The same standard is particularly applicable in
the context of defendant's motion for summary judgment, where plaintiff need only show the
OF
WEITZ
LUXENBERG,P.C.
700 BROADWAY
NEW YORK, NY 10003
10 of 12
FILED: NEW YORK COUNTY CLERK 12/28/2019 03:24 PM INDEX NO. 190149/2018
NYSCEF DOC. NO. 159 RECEIVED NYSCEF: 12/28/2019
existence of triable questions of fact, and where any doubt must be resolved against summary
resolution. S_e_eR_eid, 212 A.D. 2d 462, 463, 622 N.Y.S.2d 946, 947; see also NYPJI 2:12; Faber
(1st
vJew York City Housing Auth., 202 A.D.2d 269, 608 N.Y.S.2d 469, 470. Dept. 1994).
This principle is especially pertinent in the context of asbestos-related personal injury cases,
which involve tragic mjuries that do not manifest until many years, and typically decades, after
the plaintiff's injurious exposures.
35. Toward this end, "[t]he proponent of summary judgment must eliminate
form'."
material issues of fact by producing 'evidentiary proof in admissible Finkelstein v.
Cornell Univ. Med. College, 269 A.D.2d 114, 117, 702 N.Y.S.2d 285, 289 (1st Dep't 2000)
(quoting Zuckerman v City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595 (1980)). A
defendant moving for summary judgment must "make a prima facie showing of entitlement to
summary judgment as a matter of law, tendering sufficient evidence to demonstrate the absence
fact."
of any material issues of Ayotte v. Gervasio, 81 N.Y.2d 1062, 1063, 601 N.Y.S.2d 463
(1993) (quoting Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923 (1986)). The
failure to make such a showing requires the denial of a summary judgment motion, "regardless of
papers."
the sufficiency of the opposing Id. Every one of the movant's main assertions must be
supported by evidence proffered by that movant, because "conclusory assertions are insufficient
fact."
to demonstrate the absence of any material issues of
LAW OFFICES
OF
WEITZ
&
LUXENBERG,P.C.
700 BROADWAY
NEW YORK, NY 10003
11
11 of 12
FILED: NEW YORK COUNTY CLERK 12/28/2019 03:24 PM INDEX NO. 190149/2018
NYSCEF DOC. NO. 159 RECEIVED NYSCEF: 12/28/2019
D. Mr. Geraghty's testimony when coupled with the above
demonstrates summary judgment must be denied
36. In light of the clear precedent the denial of summary judgment
requiring
when questions of fact exist Abex's motion must be denied.
IV. CONCLUSION
it is requested that this Court deny defendant's motion
Accordingly, respectfully
in its entirety.
Dated: New York, New York
December 28, 2019
Respectfully submitted,
WEITZ & LUXENBERG, P.C.
700 Broadway
New York, NY 10003
(212) 55§-5500
Attopleys for Plaintiffs
By:
Chris Romanelli
To: All defendants via e-filing
LAW OFFICES
OF
WEITZ
&
LUXENBERG,P.C.
700 BROADWAY
NEW YORK, NY 10003
12 of 12
Preview
FILED: NEW YORK COUNTY CLERK 12/28/2019 03:24 PM INDEX NO. 190149/2018 NYSCEF DOC. NO. 159 RECEIVED NYSCEF: 12/28/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK Index No.: 190149-18 ________________ _____________________ x In Re: NEW YQRK CITY ASBESTOS LITIGATION PLAINTIFF'S OPPOSITION ------------- ¬---------- x TO.ABEX'S MOTION FOR This Document Relates To: SUMMARY JUDGMENT RAYMOND M. GERAGHTY ------------------ --- x CHRIS ROMANELLI, an attorney duly admitted to practice law before the Courts of the State of New York, affirms, under the penalties of perjury pursuant to CPLR § 2106 that the following statements are true, except for those made upon information and belief: 1. I am an attorney at law licensed to practice in the State of New York. I am associated with the law firm of Weitz & Luxenberg, P.C., counsel for plaintiff in this action. I am fully familiar with the facts and circumstances of this action. 2. This affirmation is submitted in opposition to the motion for summary judgment submitted by defendant PNEUMO ABEX LLC ("Abex") who made a variety of brake materials that were asbestos that were parts of the heavy equipment plaintiff was exposed to. 3. Abex's motion must be denied because there are questions of fact that require a trial. First, flouting the black letter law requirement of CPLR 3212, Abex motion is unsupported affidavit of a person with personal knowledge of the matters at issue entirely by any in this case. LAW OFFICES OF WEITZ & LUXENBERG,P.C. 700 BROADWAY NEW YORK, NY 10003 1 of 12 FILED: NEW YORK COUNTY CLERK 12/28/2019 03:24 PM INDEX NO. 190149/2018 NYSCEF DOC. NO. 159 RECEIVED NYSCEF: 12/28/2019 4. Second, Abex's motion for summary judgment should be denied because voluminous documentary evidence, obtained from the defendant in prior asbestos litigation against demonstrates that it manufactured and sold asbestos- Abex, contemporaneously containing brake and linings to be branded as original and aftermarket equipment, to the crane manufacturers from which Mr. Geraghty alleges asbestos exposure. I. BACKGROUND 5. Raymond M. Geraghty is a 56-year old man who is living with lung cancer. His case is part of the New York City Asbestos Litigation April 2019 in extremis group. He was diagnosed with lung cancer in April of 2018. See Path Rpt., Exh. 1. 6. He is alive and ready to testify at trial. 7. Specifically, for the purposes of this motion, and as demonstrated below, Mr. Geraghty was exposed to asbestos while working on or around the asbestos brakes of a variety of types of heavy equipment during his career as a heavy equipment operator and mechanic starting in 1981. See Interrog. Resp. at 10, 22, Exh. 2; See also deposition of Raymond Geraghty at 64-66, Exh. 3. That work caused airborne asbestos dust to be generated in his breathing zone beginning throughout this time. LAWOFFICES OF WEITZ & LUXENBERG,P.C. 700 BROADWAY NEW YORK, NY 10003 2 2 of 12 FILED: NEW YORK COUNTY CLERK 12/28/2019 03:24 PM INDEX NO. 190149/2018 NYSCEF DOC. NO. 159 RECEIVED NYSCEF: 12/28/2019 H. FACTS A. Mr. Geraghty was exposed to asbestos from working on the asbestos brakes of a variety of pieces of heavy equipment 1. Battery Park City 8. Mr. worked at Park City from approximately 1981 until Geraghty Battery 1985. Tr. at 84. Exh. 3. There he was exposed to asbestos from brakes approximately Geraghty drum" where he "deglazed i.e.,"to take the shine off the brake and and he "blew out the brakes", brakes". Geraghty Tr. at 85-87, Exh. 3. 9. There he was exposed to asbestos this way from over 20 cranes made by Groves." companies such as "P and Hs, Manitowocs, Bucyrus Eries . .. and Link-Belt . .. [and] Tr. at Exh. 3. He also recalled Bendix as a manufacturer of brake replacements. Geraghty 87-89, Id. at 93, Exh. 3. 2. North River Pollution Treatment Plant on 125th Street in Manhattan 10. Mr. did the same type of brake work at this location between in Geraghty the on a Manitowoc crane and was similarly exposed to asbestos. See Geraghty Tr. mid-1980s, at 112-120, Exh. 3. LAW OFFICES OF WEITZ & LUXENBERG,P.C. 700 BROADWAY NEW YORK, NY 10003 3 of 12 FILED: NEW YORK COUNTY CLERK 12/28/2019 03:24 PM INDEX NO. 190149/2018 NYSCEF DOC. NO. 159 RECEIVED NYSCEF: 12/28/2019 3. World Wide Plaza 11. Mr. Geraghty worked at World Wide Plaza on 50th St. and 8th Ave k Manhattan in the late 1980s where he was a maintenance man on a "A 1900 Link-Belt tower crane.'' Geraghty Tr. at 124-129, Exh. 3. 4. NYU Hospital between 1991 and 1992 12. At this location Mr. did the same type of work on and was Geraghty exposed to asbestos from asbestos brakes on Mantiowoc and Kodiak cranes. See Geraghty Tr. at 134-142, Exh. 3. B. Abex submits no facts in support of its motion 13. As argued flouting CPLR 3212, Abex does not provide any below, affidavit someone with knowledge of the facts in support of its motion. Itsmotion should be by denied on this basis alone. 14. neither Abex's memorandum of law nor the attorney Importantly, however, affirmation submitted its own counsel that Abex contemporaneously manufactured, sold by deny and distributed brakes to the manufacturers Mr. Geraghty identified being asbestos-containing exposed to asbestos from. This is because Defense counsel has no personal knowledge of the 1) facts and is incapable of such assertions, and; such a claim would be false. making 2) LAW OFFICES OF WEITZ & LUXENBERG,P.C. 700 BROADWAY NEW YORK, NY 10003 4 of 12 FILED: NEW YORK COUNTY CLERK 12/28/2019 03:24 PM INDEX NO. 190149/2018 NYSCEF DOC. NO. 159 RECEIVED NYSCEF: 12/28/2019 C. Abex supplied asbestos containing friction material to the heavy eauin_ment manufacturers at issue 15. In September 2013, Counsel for Abex supplied this office with a "hard drive," worth of invoices that referenced Abex sales of asbestos-containing friction materials to various manufacturers. See email exchange Exh. 4. 16. Included in this production were invoices the sale of asbestos- evidencing containing brake linings to: P&H, Bucyrus-Erie, Link-belt, and Bendix during the contemporaneous time period. 17. Attached as Exhibit 5 are documents and sales invoices evidencing that Abex contemporaneously supplied P&H with asbestos-containing friction materials. 18. Attached as Exhibit 6 are documents and sales invoices evidencing that Abex contemporaneously supplied Bucyrus Erie with asbestos-containing friction materials. 19. Attached as Exhibit 7 are documents and sales invoices evidencing that Abex contemporaneously supplied Link Belt with asbestos containing friction materials. 20. Attached as Exhibit 8 are documents and sales invoices evidencing that Abex contemporaneously supplied lVlanitowoc with substantial amounts of asbestos-containing friction materials. 21. Attached as Exhibit 9 are 1981 Closing reports demonstrating that Abex supplied asbestos-containing friction materials to Bendix, among others. 22. In a similar case, Abex made a similar motion. It was denied. See Olori v. Abex, No. 2588/2014, (Sup. Ct. Sullivan Cty., Jan. 12, 2016) (Aulisi, J. )Exh. 10. LAW OFFICES OF WEITZ & LUXENBERG,P.C. 700 BROADWAY NEW YORK, NY 10003 .5 5 of 12 FILED: NEW YORK COUNTY CLERK 12/28/2019 03:24 PM INDEX NO. 190149/2018 NYSCEF DOC. NO. 159 RECEIVED NYSCEF: 12/28/2019 III. ARGUMENT A. It is defêñdant's burden to estáblish that its products could not have contributed to the olaintiff's disease 23. A defendant moving for summary judgment must firstestablish itsprima facie entitlement to judgment as a matter of law by demonstrating the absence of material issues of fact. Vega v. Restani Const. C_orp., 18 N.Y.3d 499, 502-503 (2012)_"This burden is a heavy one and on a motion for suilliiiary judgment, facts must be viewed in the light most favorable to party" the.non-moving Jacobson v. New York City Health and Hosoitals Corporation. 22 N.Y.3d 824, 833 (2015). "Summary judgment may not be obtained by pointing to gaps in a plaintiffs prof and therefore, a motion must be denied regardless of the sufficiency of plaintiffs opposing papers" Torres v. Indus. Container, 305 A.D.2d 136 (1st Dep't 2003). LAW OFFICES OF WEITZ & LUXENBERG,P.C. 700 BROADWAY NEW YORK, NY 10003 6 of 12 FILED: NEW YORK COUNTY CLERK 12/28/2019 03:24 PM INDEX NO. 190149/2018 NYSCEF DOC. NO. 159 RECEIVED NYSCEF: 12/28/2019 24. In the asbestos context, New York's Appellate Division First Department reiterated this in Koulermos v. A.O. Smith Water Prods., where itwas held pointing to gaps in an judgment." opponent's evidence is insufficient to demonstrate a movant's entitlement to summary 137 A.D.3d 575, 576 (1st Dep't 2016) The court further noted that the failure to present evidence, such as affidavits, which affirmatively demonstrate the merit of the defense, is enough to deny summary judgment. An affidavit from a corporate representative which is "conclusory basis" and without specific factual does not meet the burden. DiSalvo v. A.O. Smith Water Prods. Co., 123 A.D.3d 498, 499, (1st Dep't 2014). Summary judgment must be denied where a defendant fails "to unequivocally establish that itsproduct could not have contributed to the injury" (1st causation of plaintiffs Reid v. Georgia Pacific Corp., 212 A.D.2d 462, 463 Dep't 1995). 25. A movant who fails to meet itsprima facie burden is prohibited "from reply." remedying basic deficiencies in its prima facie showing by submitting evidence in Kennelly v. Mobius Realty Holdings, LLC, 33 AD3d 380 (1st Dep't 2006); see also Dannasch v. Bifulco, 184 AD2d 415 (1st Dep't 1992). 26. Denial of summary judgment based on the circumstantial product identification of a defendant's product was recently upheld by New York's Appellate Division, First Department in the asbestos context by Krok v. The Nash Eng. Co., 146 A.D.3d 700 (1st Dep't 2017). LAW OFFICES OF WEITZ & LUXENBERG,P.C. 700 BROADWAY NEW YORK, NY 10003 7 of 12 FILED: NEW YORK COUNTY CLERK 12/28/2019 03:24 PM INDEX NO. 190149/2018 NYSCEF DOC. NO. 159 RECEIVED NYSCEF: 12/28/2019 27. There "Defendant failed to establish prima facie that plaintiffs decedent products." could not have been exposed to its Krok at 700. The First Department further held that when plaintiff introduced ship records identifying the defendant's products contemporaneously with the decedent's testimony that he worked on (but could not name) various pumps, summary judgment was properly denied. Id. 28. Here, the moving defendant submitted an affidavit in support of itsmotion but itis not clear whether the affirmation is based on personal knowledge as opposed to a review of other evidence, such as documents and testimony. Accordingly, summary judgment must be denied. B. Abex's matian must be denied as there are auestions of fact 29. It isclear that defendant's motion for summary judgment should be denied. It iswell-settled in New York that the court must view allof the evidence in the light most favorable to the nonmovant. Henderson v. City of New York, 178 A.D.2d 129, 576 N.Y.S.2d 562, 564 (1st Dep't 1991); McLaughlin v. Thaima Realty Com, 161 A.D.2d 383, 384, remedy" 555 N.Y.S.2d 125 (1st Dep't 1990). Moreover, summary judgment is a "drastic that doubt" must not be granted if there is "any about the existence of a triable issue of fact. Reid v. (1st Georgia Pacific Corp., 212 A.D.2d 462, 622 N.Y.S.2d 946 Dep't 1995). Accord Field v. Waldbaum, Inc., 35 A.D.2d 652, 653, 827 N.Y.S.2d 253, 255 (2d Dep't 2006); Jones v. Surrey Coop. Apts., Inc., 263 A.D.2d 33, 37, 700 N.Y.S.2d 118, 121 (1st Dep't 1999) (reiterating that, "on [a] motion for summary judgmeñt itwas the movant's burden to establish the non-existence LAW OFFICES OF WEITZ & LUXENBERG,P.C. 700 BROADWAY NEW YORK, NY 10003 8 8 of 12 FILED: NEW YORK COUNTY CLERK 12/28/2019 03:24 PM INDEX NO. 190149/2018 NYSCEF DOC. NO. 159 RECEIVED NYSCEF: 12/28/2019 of those elements") (court's eniphasis; omitting internal citations). parties' 30. In a case such as this one, where at best the rendition of the facts conflicts, suiñüiary judgment must be denied. See Rosario v. Benmereui, 6 A.D.3d 311, 775 N.Y.S.2d 133 (1st Dep't 2004) ("denying summary judgment on liability Inasmuch as the conflicting deposition testimony raises triable issues"); In re Eighth Judicial Dist. Asbestos Litigation, 269 A.D.2d 749, 703 N.Y.S.2d 416 (4th Dep't 2000)(reversing grant of summary judgment holding trial court improperly resolved issues of credibility). 31. Thus, for instance, the Appellate Division in Seifert v. Arlona Co., 205 A.D.2d 679, 613 N.Y.S.2d 643 (2d Dep't 1994), ruled that "[i]t is impossible to determine the parties' contractual intention from the evidence submitted without assessing the credibility of the motion." witnesses. Thus, the Supreme Court properly denied Dumor's summary judgment 205 A.D.2d at 680; see also Cochrane v. Owens-Corning Fiberglass Corp., 219 A.D.2d 557, 631 (1st N.Y.S.2d 358, 360 Dep't 1995) (similarly holding that, in the context of summary judgment proceedings, "[t]he credibility of the parties is not an appropriate consideration for the court . .., and statements made in opposition to the motion must be accepted as true"). C. The court deciding summary judgmcat only need find issues not determine them 32. In the same vein, the First Department has unequivocally ruled that "[t]he deposition testimony of a fitigant is sufficient to raise an issue of fact so as to preclude the grant witnesses' of summary judgment dismissing the complaint . .. . The assessment of the value of a testimony [here, the plaintiff himselfj constitutes an issue for resolution by the trierof fact, and LAW ORCES WEITZ & LUXENBERG,P.C. 700 BROADWAY NEW YORK, NY 10003 9 of 12 FILED: NEW YORK COUNTY CLERK 12/28/2019 03:24 PM INDEX NO. 190149/2018 NYSCEF DOC. NO. 159 RECEIVED NYSCEF: 12/28/2019 any apparent discrepancy between the testimony and the evidence of record goes only to the testimony." weight and not the admissibility of the Dollas v. W.R. Grace & Co., 225 A.D.2d 319, (13t 321 Dep't 1996); see also Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 (1957); Wiener v Ga-Ro Die Cuttine, 104 AD2d 331, 333 (1984), aff'd 65 NY2d 732, (holding any conflict between plaintiff's allegations and the defendant's purported evidence merely presents an issue of credibility for resolution at trial); Cohn v Lionel Corp., 21 NY2d 559, 563 (1968) see also, Patrolmen's Benevolent Assn. v City of New York, 27 NY2d 410, 415 (1984). Accord Alvarez v. New York City Housing Authority, 295 A.D.2d 225, 226 (1st Dep't. 2002)("Any inconsistencies in the several accounts of the incident go to the weight of the evidence, not its competence, and the value to be accorded to the evidence is a matter for resolution by the trier of fact.") 33. This is particularly true in asbestos cases where the testimony presented is typically of remote events given by dying witnesses. Dollas, 225 A.D.2d at 319. Moreover, "any apparent discrepancy between the testimony and the evidence of record goes only to the weight testimony." and not the admissibility of the Dollas at 321, citing Rivera v. City of New York, 212 A.D.2d 403, 404 (1st Dep't 1995). 34. It isalso well-settled that, in personal injury litigation, the plaintiff is not required to show the precise cause of his damages, but only facts and conditions from which defendant's liability can be reasonably inferred. The same standard is particularly applicable in the context of defendant's motion for summary judgment, where plaintiff need only show the OF WEITZ LUXENBERG,P.C. 700 BROADWAY NEW YORK, NY 10003 10 of 12 FILED: NEW YORK COUNTY CLERK 12/28/2019 03:24 PM INDEX NO. 190149/2018 NYSCEF DOC. NO. 159 RECEIVED NYSCEF: 12/28/2019 existence of triable questions of fact, and where any doubt must be resolved against summary resolution. S_e_eR_eid, 212 A.D. 2d 462, 463, 622 N.Y.S.2d 946, 947; see also NYPJI 2:12; Faber (1st vJew York City Housing Auth., 202 A.D.2d 269, 608 N.Y.S.2d 469, 470. Dept. 1994). This principle is especially pertinent in the context of asbestos-related personal injury cases, which involve tragic mjuries that do not manifest until many years, and typically decades, after the plaintiff's injurious exposures. 35. Toward this end, "[t]he proponent of summary judgment must eliminate form'." material issues of fact by producing 'evidentiary proof in admissible Finkelstein v. Cornell Univ. Med. College, 269 A.D.2d 114, 117, 702 N.Y.S.2d 285, 289 (1st Dep't 2000) (quoting Zuckerman v City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595 (1980)). A defendant moving for summary judgment must "make a prima facie showing of entitlement to summary judgment as a matter of law, tendering sufficient evidence to demonstrate the absence fact." of any material issues of Ayotte v. Gervasio, 81 N.Y.2d 1062, 1063, 601 N.Y.S.2d 463 (1993) (quoting Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923 (1986)). The failure to make such a showing requires the denial of a summary judgment motion, "regardless of papers." the sufficiency of the opposing Id. Every one of the movant's main assertions must be supported by evidence proffered by that movant, because "conclusory assertions are insufficient fact." to demonstrate the absence of any material issues of LAW OFFICES OF WEITZ & LUXENBERG,P.C. 700 BROADWAY NEW YORK, NY 10003 11 11 of 12 FILED: NEW YORK COUNTY CLERK 12/28/2019 03:24 PM INDEX NO. 190149/2018 NYSCEF DOC. NO. 159 RECEIVED NYSCEF: 12/28/2019 D. Mr. Geraghty's testimony when coupled with the above demonstrates summary judgment must be denied 36. In light of the clear precedent the denial of summary judgment requiring when questions of fact exist Abex's motion must be denied. IV. CONCLUSION it is requested that this Court deny defendant's motion Accordingly, respectfully in its entirety. Dated: New York, New York December 28, 2019 Respectfully submitted, WEITZ & LUXENBERG, P.C. 700 Broadway New York, NY 10003 (212) 55§-5500 Attopleys for Plaintiffs By: Chris Romanelli To: All defendants via e-filing LAW OFFICES OF WEITZ & LUXENBERG,P.C. 700 BROADWAY NEW YORK, NY 10003 12 of 12