Opinion
12-11-2014
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.
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.
GONZALEZ, P.J., TOM, FRIEDMAN, ACOSTA, MOSKOWITZ, JJ.
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 A.D.2d 79, 80, 628 N.Y.S.2d 72 [1st Dept.1995] ; Reid v. Georgia–Pacific Corp., 212 A.D.2d 462, 622 N.Y.S.2d 946 [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 N.Y.3d 373, 384–385, 795 N.Y.S.2d 502, 828 N.E.2d 604 [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 A.D.3d 432, 988 N.Y.S.2d 490 [1st Dept.2014] ).