Matthew F. Gorzka and Phyllis M. Gorzka, Plaintiffs-Appellants, v. Insulation Distributors, Inc., Defendant-Respondent, et al., Defendants.

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

Matter of EIGHTH JUDICIAL DISTRICT ASBESTOS LITIGATION. Matthew F. Gorzka and Phyllis M. Gorzka, Plaintiffs-Appellants, v. Insulation Distributors, Inc., Defendant-Respondent, et al., Defendants.

Decided: April 28, 2006

PRESENT:  SCUDDER, J.P., KEHOE, SMITH, GREEN, AND PINE, JJ. Lipsitz, Green, Fahringer, Roll, Salisbury & Cambria LLP, Buffalo (John A. Collins of Counsel), for Plaintiffs-Appellants. Damon & Morey LLP, Buffalo (Amy Archer Flaherty of Counsel), for Defendant-Respondent.

Plaintiffs commenced this action to recover damages for injuries sustained by Matthew F. Gorzka (plaintiff) as the result of his exposure to asbestos-containing products at his workplace.   Supreme Court properly granted the motion of defendant Insulation Distributors, Inc. (IDI) seeking summary judgment dismissing the amended complaint and cross claims against it.   IDI met its initial burden of establishing its entitlement to judgment by establishing that plaintiffs did not identify IDI as a supplier of any asbestos-containing products to which plaintiff was exposed (see Diel v. Flintkote Co., 204 A.D.2d 53, 54, 611 N.Y.S.2d 519;  Schiraldi v. U.S. Min. Prods., 194 A.D.2d 482, 483, 599 N.Y.S.2d 572).   Indeed, the failure of plaintiffs to name IDI as a supplier in their response to interrogatories constitutes an admission that IDI was not a source of an asbestos-containing product to which plaintiff was exposed (see Bigelow v. Acands, Inc., 196 A.D.2d 436, 439, 601 N.Y.S.2d 478;  see also United Bank Ltd. v. Cambridge Sporting Goods Corp., 41 N.Y.2d 254, 264, 392 N.Y.S.2d 265, 360 N.E.2d 943;  Smith v. Kuhn, 221 A.D.2d 620, 634 N.Y.S.2d 167), and IDI thus established that plaintiffs' action against it has no merit (see generally CPLR 3212 [b] ).  The evidence submitted by plaintiffs in opposition to the motion establishing that IDI supplied asbestos-containing products to plaintiff's employer is insufficient to create a reasonable inference that IDI was a source of an asbestos-containing product to which plaintiff was exposed (see Diel, 204 A.D.2d at 54, 611 N.Y.S.2d 519;  Schiraldi, 194 A.D.2d at 483-484, 599 N.Y.S.2d 572), and thus we conclude that plaintiffs failed to raise a triable issue of fact to defeat the motion (see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: