DECISION ORDER ON MOTION Upon the foregoing documents, it is ordered that the instant motion for summary judgment seeking dismissal of this action, pursuant to CPLR §3212(b), is denied for the reasons set forth below. Here, defendant Bradford White moves to dismiss this action on the grounds that plaintiff decedent, Mr. Christopher Yohe, was not exposed to asbestos from any Bradford White product during his employment as a plumber from the 1980s to the 2000s. Defendant Bradford White argues that Mr. Yohe’s testimony identifies water heater parts that would not have contained asbestos. In opposition, plaintiff notes that defendant Bradford White’s affidavit is insufficient and it does not deny historically manufacturing asbestos containing water heaters. The Court notes that summary judgment is a drastic remedy and should only be granted if the moving party has sufficiently established that it is warranted as a matter of law. See Alvarez v. Prospect Hosp., 68 NY2d 320, 324 (1986). “The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case”. Winegrad v. New York University Medical Center, 64 NY2d 851, 853 (1985). Despite the sufficiency of the opposing papers, the failure to make such a showing requires denial of the motion. See id. at 853. Additionally, summary judgment motions should be denied if the opposing party presents admissible evidence establishing that there is a genuine issue of fact remaining. See Zuckerman v. City of New York, 49 NY2d 557, 560 (1980). “In determining whether summary judgment is appropriate, the motion court should draw all reasonable inferences in favor of the nonmoving party and should not pass on issues of credibility.” Garcia v. J.C. Duggan, Inc., 180 AD2d 579, 580 (1st Dep’t 1992), citing Dauman Displays, Inc. v. Masturzo, 168 AD2d 204 (1st Dep’t 1990). The court’s role is “issue-finding, rather than issue-determination”. Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 (1957) (internal quotations omitted). As such, summary judgment is rarely granted in negligence actions unless there is no conflict at all in the evidence. See Ugarriza v. Schmieder, 46 NY2d 471, 475-476 (1979). Furthermore, the Appellate Division, First Department, has held that on a motion for summary judgment, it is moving defendant’s burden “to unequivocally establish that its product could not have contributed to the causation of plaintiff’s injury”. Reid v. Georgia-Pacific Corp., 212 AD2d 462, 463 (1st Dep’t 1995). Here, defendant Bradford White has failed to meet its initial burden in establishing that its product did not contain asbestos and could not have contributed to plaintiff’s asbestos exposure. Rather, defendant Bradford White relies solely upon an insufficient affidavit and understates the plaintiff’s consistent and unequivocal testimony regarding their products. With respect to plaintiff’s deposition testimony, the Appellate Division, First Department, has held that “[t]he deposition testimony of a litigant is sufficient to raise an issue of fact so as to preclude the grant of summary judgment dismissing the complaint. The assessment of the value of a witnesses’ testimony constitutes an issue for resolution by the trier of fact, and any apparent discrepancy between the testimony and the evidence of record goes only to the weight and not the admissibility of the testimony.” Dollas v. W.R. Grace and Co., 225 AD2d 319, 321 (1st Dep’t 1996) (internal citations omitted). The Court finds that plaintiff clearly identified Bradford White water heaters and recalled seeing their label tags or metal plates. See Affirmation & Memorandum of Law in Opposition to Defendant Bradford White Corporation’s Motion for Summary Judgment, Exh. 3, Yohe Deposition dated September 25, 2020 at p. 585. Mr. Yohe also gave unequivocal testimony on the differences between asbestos containing parts in older water heaters and non-asbestos containing parts in newer models. See id. at p. 594-595. Mr. Yohe was specifically trained in identifying asbestos and relevant materials during the course of his professional experience. See id. at p. 1043-1045. Defendant Bradford White further relies on the affidavit of Mark Taylor dated September 19, 2022. This affidavit does not indicate the requisite personal knowledge of the relevant period to dispel with certainty all questions of fact. Specifically, the affidavit merely asserts Mr. Taylor’s familiarity with Bradford White’s historical water heater products. Mr. Taylor does not claim to have firsthand knowledge with Bradford White manufacturing, nor does he cite any documentary evidence reviewed. Plaintiff correctly points out that the affidavit of Mr. Taylor only describes Bradford White’s activities in the present-tense. He fails to support, or even address, the claim that Bradford White has never historically manufactured products containing asbestos. Without any further details, this affidavit is insufficient to establish with certainty that historical Bradford White water heaters did not contain asbestos, and that any asbestos containing Bradford White parts could not have been encountered by Mr. Yohe. As a reasonable juror could decide that plaintiff was exposed to asbestos from a Bradford White-manufactured water heater or part, issues of fact exist to preclude summary judgment. The Court finds that triable issues of fact exist as to whether Mr. Yohe worked with an asbestos containing Bradford White product and to what extent he was exposed to asbestos from it. Accordingly, it is ORDERED that defendant Bradford White’s motion for summary judgment is denied in its entirety; and it is further ORDERED that within 30 days of entry plaintiff shall serve all parties with a copy of this Decision/Order with notice of entry. This constitutes the Decision/Order of the Court. CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION GRANTED X DENIED GRANTED IN PART OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE Dated: July 5, 2023
