William Berensmann, et al., Plaintiffs–Respondents, v. 3M LLC (2014)

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

William Berensmann, et al., Plaintiffs–Respondents, v. 3M Company formerly known as Minnesota Mining & Manufacturing Co., et al., Defendants, Georgia–Pacific LLC, etc., Defendant–Appellant.

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Decided: November 20, 2014

Renwick, J.P., Saxe, Moskowitz, DeGrasse, Richter, JJ. Lynch Daskal Emery LLP, New York (Scott R. Emery of counsel), for appellant. Levy Konigsberg LLP, New York (James M. Kramer of counsel), for respondent.

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Order, Supreme Court, New York County (Sherry Klein Heitler, J.), entered on or about December 13, 2013, which denied defendant's motion for summary judgment dismissing the complaint and all cross claims as against it, unanimously modified, on the law, to grant the motion to the extent of dismissing plaintiffs' claims related to defendant Georgia–Pacific LLC's (defendant) wallboard products allegedly containing asbestos, and otherwise affirmed, without costs.

The complaint alleges that plaintiff William Berensmann was exposed to asbestos-containing sheetrock and joint compound manufactured by, among other companies, defendant.   As an initial matter, it is undisputed that defendant never manufactured wallboards containing asbestos, and thus, the claims relating to defendant's wallboards are dismissed.

Summary judgment in defendant's favor was otherwise properly denied since defendant failed “to unequivocally establish that its product could not have contributed to the causation of plaintiff's injury” (Reid v. Georgia–Pacific Corp., 212 A.D.2d 462, 463 [1st Dept 1995] ).   That plaintiff may have had the subjective belief that the joint compound that he used to perform repairs in his home did not contain asbestos does not warrant a different determination, where the evidence demonstrates that defendant did manufacture joint compound containing asbestos at the relevant times.   Although the record shows that defendant began to manufacture and ship asbestos-free joint compound around the time that plaintiff purchased defendant's product, issues of fact exist as to whether asbestos-free joint compound was available in Manhattan where plaintiff made his purchase of the subject product (see e.g. Lloyd v. W.R. Grace & Co.—Conn., 215 A.D.2d 177 [1st Dept 1995] ).

We have considered the remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

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CLERK