13566, 190472/12

122 A.D.3d 520 (2014)

997 N.Y.S.2d 381

2014 NY Slip Op 08131

In the Matter of NEW YORK CITY ASBESTOS LITIGATION. WILLIAM BERENSMANN et al., Respondents, v. 3M COMPANY, Formerly Known as MINNESOTA MINING & MANUFACTURING CO., et al., Defendants, and GEORGIA-PACIFIC LLC, Appellant.

Appellate Division of the Supreme Court of New York, First Department.

Decided November 20, 2014.

Order, Supreme Court, New York County (Sherry Klein Heitler, J.), entered on or about December 13, 2013, which denied defendant's motion for summary judgment dismissing the complaint and all cross claims as against it, unanimously modified, on the law, to grant the motion to the extent of dismissing plaintiffs' claims related to defendant Georgia-Pacific LLC's (defendant) wallboard products allegedly containing asbestos, and otherwise affirmed, without costs.

The complaint alleges that plaintiff William Berensmann was exposed to asbestos-containing sheetrock and joint compound manufactured by, among other companies, defendant. As an initial matter, it is undisputed that defendant never manufactured wallboards containing asbestos, and thus, the claims relating to defendant's wallboards are dismissed.

Summary judgment in defendant's favor was otherwise properly denied since defendant failed "to unequivocally establish that its product could not have contributed to the causation of plaintiff's injury" (Reid v Georgia-Pacific Corp., 212 A.D.2d 462, 463 [1st Dept 1995]). That plaintiff may have had the subjective belief that the joint compound that he used to perform repairs in his home did not contain asbestos does not warrant a different determination, where the evidence demonstrates that defendant did manufacture joint compound containing asbestos at the relevant times. Although the record shows that defendant began to manufacture and ship asbestos-free joint compound around the time that plaintiff purchased defendant's product, issues of fact exist as to whether asbestos-free joint compound was available in Manhattan where plaintiff made his purchase of the subject product (see e.g. Lloyd v W.R. Grace & Co. — Conn., 215 A.D.2d 177 [1st Dept 1995]).

We have considered the remaining contentions and find them unavailing.


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