13746 190109/10

123 A.D.3d 498 (2014)

1 N.Y.S.3d 20

2014 NY Slip Op 08719

In the Matter of NEW YORK CITY ASBESTOS LITIGATION. CARL A. DISALVO, Respondent, v. A.O. SMITH WATER PRODUCTS et al., Defendants, and NELES-JAMESBURY, INC., Appellant.

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

Decided December 11, 2014.

Defendant failed to meet its initial burden of establishing prima facie that its product could not have contributed to the causation of plaintiff's asbestos-related injury (see Comeau v W.R. Grace & Co. — Conn., 216 A.D.2d 79, 80 [1st Dept 1995]; Reid v Georgia-Pacific Corp., 212 A.D.2d 462 [1st Dept 1995]). While defendant's representative proffered an affidavit in which he states that it was impossible for plaintiff to have observed valves with the name Neles-Jamesbury, the affidavit was conclusory and without specific factual basis, and thus did not establish the prima facie burden of a proponent of a motion for summary judgment (see JMD Holding Corp. v Congress Fin. Corp., 4 N.Y.3d 373, 384-385 [2005]).

We decline to consider defendant's argument that it did not have a duty to warn of asbestos in the insulation used on its valves, a product that it did not manufacture, as the argument was made for the first time on appeal (see Gonzalez v Fidelity & Deposit Co. of Maryland, 119 A.D.3d 432 [1st Dept 2014]).


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