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Floor Tile Manufacturer Failed to Meet Prima Facie Burden for Summary Judgment Supreme Court of New York, New York County, July 8, 2015

In this NYCAL case, the plaintiff, Bruce Bardone, alleges that he was exposed to asbestos floor tiles while working as an electrician at various job sites in New York City from the early 1960s through the 1970s. Defendant Goodyear Tire & Rubber Company (Goodyear) moved for summary judgment, arguing there is no evidence the plaintiff was exposed to asbestos from a product manufactured, sold, distributed, and/or installed by Goodyear. In support of the motion, Goodyear offered the affidavit of Goodyear employee Joseph Kemmerling.
 
The court denied Goodyear’s motion and held: “defendant has failed to meet its initial burden. The affidavit of Joseph Kemmerling proffered in support of the motion points to no document, brochure or other source of information categorically refuting plaintiff's claims with respect to the descriptions of the tiles he encountered. Additionally, Kemmerling admits to only reviewing ‘certain portions’ of plaintiff's deposition testimony prior to disseminating his own findings. And while Kemmerling avers that ‘asbestos was not an ingredient in Goodyear vinyl flooring’ from 1969 to 1979, he does not dispute that asbestos-containing Goodyear tile existed prior to that time, a period in which plaintiff claims to have worked with such tiles. Additionally, the deposition testimony of Russell Holmes, the aforementioned former Goodyear employee, appears to state that HDH tile, a particular Goodyear tile known to have contained asbestos, was manufactured until at least 1975, also within the relevant time frame of plaintiff's work history. As such, Goodyear appears to concede, at a minimum, that tiles manufactured by it contained asbestos during at least part of plaintiff's relevant work history. That finding is undisturbed by defendant’s additional submission of the affidavit of Edmund Lutz, a former Goodyear marketing and sales representative for the first time in its Reply Memorandum. Lutz’s affidavit stated that ‘Goodyear floor tile was never manufactured or sold in packages that bore the word ‘asbestos.’” While that statement is at odds with plaintiff’s account, defendant cannot rule out the possibility, for instance, that the word ‘asbestos’ was placed on the boxes at plaintiff’s various job sites after the boxes had already been marketed or sold. The undisputed presence of defendant’s tiles at plaintiff’s various job sites sufficiently shows that defendant cannot meet its burden of establishing a prima facie case.”

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