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Pump Manufacturer Fails to Establish a Prima Facie Entitlement to Summary Judgment


Pump Manufacturer Fails to Establish a Prima Facie Entitlement to Summary Judgment

Supreme Court of New York, July 21, 2015

In this NYCAL case, the plaintiff alleged exposure to asbestos from Byron Jackson pumps manufactured by defendant BW/IP while he was working in powerhouses from 1948–1971. BW/IP moved for summary judgment, arguing that the plaintiff failed to identify its product as the source of the plaintiff’s alleged exposure.

The court denied the motion and held: “BW/IP has failed to establish a prima facie case. No affidavit, conclusory or otherwise, was proffered in support of its motion. Nor did BW/IP cite to any deposition testimony of its own witnesses that would support a prima facie case. BW/IP’s memorandum of law does not dispute the presence, at a minimum, of Byron Jackson asbestos-insulated pumps at the Waterside powerhouse beginning in September 1963. Moreover, BW/IP does not rule out the possibility that such asbestos-insulated pumps may have been installed at and subsequently remained on the Waterside powerhouse site during plaintiff’s window of potential exposure from 1948 to 1971. Indeed, the testimony of Frank Costanzo confirms that BW/IP sold Byron Jackson pumps with asbestos components, and contracted with insulation contractors to insulate its pumps with asbestos until the 1980s. Moreover, when the court pointedly asked BW/IP’s counsel at oral argument whether he would concede that Byron Jackson asbestos-insulated pumps would have likely remained at the Waterside powerhouse after 1963, counsel stated as follows: ‘I think that’s probably accurate.’  BW/IP also could not point to any records submitted to the court to rebuke plaintiff’s testimony highlighted for that court at oral argument that ‘during all those years working for Detrick, I must have gone into just about all of those major powerhouses along the East River.’ As such, the unrebuked presence of Byron Jackson asbestos-insulated pumps at powerhouses along the East River, and specifically at the Waterside powerhouse, during the years of plaintiff’s years of work at powerhouses sufficiently illustrates defendant’s inability to meet its burden here.”

Read the full decision here.

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