REFERMAT v. Duch Builders Supply, Inc., Defendant-Appellant. (2005)

Supreme Court, Appellate Division, Fourth Department, New York.

Patricia D. REFERMAT, Individually and as Executrix of the Estate of Richard M. Refermat, Deceased, Plaintiff-Respondent, v. A.C. AND S., INC. (Armstrong Contracting & Supply), et al., Defendants, Duch Builders Supply, Inc., Defendant-Appellant.

Decided: February 04, 2005

PRESENT: GREEN, J.P., SCUDDER, MARTOCHE, SMITH, AND LAWTON, JJ.

Wolford & LeClair LLP, Rochester (Leslie E. Swift of Counsel), for Defendant-Appellant. Weitz & Luxenberg, P.C., New York (Stephen J. Riegel of Counsel), for Plaintiff-Respondent.

In this action plaintiff seeks to recover damages for the injuries and wrongful death of decedent allegedly resulting from his exposure to asbestos contained in products sold by Henry R. Duch. Supreme Court properly denied the motion of Duch Builders Supply, Inc. (defendant) seeking summary judgment dismissing the second amended complaint against it. Defendant failed to establish as a matter of law that it is not liable for the torts of Henry R. Duch, its predecessor (see Meadows v. Amsted Indus., 305 A.D.2d 1053, 1055, 760 N.Y.S.2d 604; cf. Hansen v. Filtron Mfg. Co., 282 A.D.2d 433, 434, 723 N.Y.S.2d 85; see generally Schumacher v. Richards Shear Co., 59 N.Y.2d 239, 244-245, 464 N.Y.S.2d 437, 451 N.E.2d 195). Defendant also failed to establish that the products sold by Henry R. Duch could not have contributed to decedent's injuries and death (see Matter of Eighth Jud. Dist. Asbestos Litig., 255 A.D.2d 1002, 1003, 679 N.Y.S.2d 777).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed with costs.

MEMORANDUM:

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