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New NYCAL Judge Denies Summary Judgment For Tile Setter Asbestos Claim, Ruling Defendant Did Not Meet Prima Facie Burden Under New York Labor Law

NYCAL, April 27, 2015

The plaintiff commenced this action under New York’s Labor Law claiming asbestos exposure in connection with tile setting work between the 1960s and 1980, at a variety of construction sites in New York City. One of the general contractor defendants moved for summary judgment, claiming “because there is no triable issue of material fact and because plaintiffs have failed to identify or establish Morse Diesel as the source of any asbestos exposure nor have plaintiffs demonstrated that Morse Diesel had any direction or control over others who may have caused John Storey’s injuries.” Honorable Peter Moulten, a newly appointed NYCAL judge, pointed out that placing the burden on the plaintiff is not the proper standard for summary judgment in New York: “This of course is the incorrect standard, as the moving party (here, MD) must establish a prima facie case.”

Even if the contractor defendant had met its burden, the court ruled there were still questions of fact, stating: “Even if MD had met its burden, issues of fact exist for trial. Plaintiffs point to the United States Department of Labor Occupational Safety & Health Administration (OSHA) regulations in 1971 regulating the amount of asbestos exposure considered safe for employees. Plaintiffs also point to testimony in a case before Judge Madden where their expert testified that in 1974 OSHA published an alert to the construction industry warning of the dangers of asbestos. The OSHA website also reflects the development of regulations aimed at the construction industry in particular starting in 1983. Thus, on this record, an issue of fact exists as to whether MD violated Labor Law § 200 and was negligent because as a general contractor, it should have known of the dangers from MD laborers (or other laborers) sweeping up asbestos debris.”

Read the full decision here.

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