542, 190406/14.

137 A.D.3d 575 (2016)

27 N.Y.S.3d 157

2016 NY Slip Op 01913

MICHAEL KOULERMOS et al., Plaintiffs, v. A.O. SMITH WATER PRODUCTS, Defendant, NATIONAL GRID USA, Respondent, and COURTER & COMPANY et al., Appellants.

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

Decided March 17, 2016.

Courter and Treadwell failed to establish prima facie that plaintiff Michael Koulermos was not at the facility in question alongside their employees. Their contention rested on evidence of plaintiff's inability to remember precisely when he worked at the facility. However, pointing to gaps in an opponent's evidence is insufficient to demonstrate a movant's entitlement to summary judgment; Courter and Treadwell failed to present evidence, such as affidavits establishing when their employees were present at the facility and whether or not those employees used asbestos-containing products, to "affirmatively demonstrate the merit of [their] ... defense" (Dalton v Educational Testing Serv., 294 A.D.2d 462, 463 [2d Dept 2002]).

In any event, in opposition, defendant National Grid produced evidence showing when the facility was under construction and that during the construction Courter and Treadwell's employees were at the site for the installation of boilers and related equipment, a process that involved the use of asbestos-containing products and that occurred in plaintiff's vicinity.

We have considered Courter and Treadwell's remaining arguments and find them unavailing.


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