Using Missing Facts As A Defense In NYC Asbestos Suits

January 6, 2020Article
Law360 Expert Analysis

In a personal injury lawsuit, it is reasonable to expect that a plaintiff’s theory of liability against a defendant be supported by facts. If a plaintiff is unable to present any facts to support his theory, investigating the claim becomes impossible. This is because without underlying material facts, the plaintiff’s theory does not have any substance.

In recent cases such as Cosgriff[1], the New York City Asbestos Litigation court has adopted the legal standard that if a defendant can show that the evidentiary record cannot support an inference of exposure to asbestos, it will be entitled to summary judgment. The decision in Cosgriff further relied upon the First Department’s position in Schiraldi v. U.S. Mineral Pods.[2] that if the plaintiff fails to explain exposure for a given defendant, that “[t]he absence of such proof established appellant’s [defendant’s] nonliability and shifted to plaintiff the burden of demonstrating by admissible evidence the existence of factual issue requiring a trial of the action or of tendering an acceptable excuse for his failure to do so.”

This standard forms the reasoning behind the grant of summary judgment for three distinct scenarios in the NYC litigation: (1) no identification, (2) factual impossibility, and (3) no factual foundation. Using the analogy of a simple car accident case, this article explains how material factual deficiencies can allow summary judgment for a defendant who is left without a means to investigate the claims that are brought against it.

The No-Identification Dismissal

The most fundamental dismissal in an asbestos lawsuit in New York city occurs when a defendant company is not expressly connected to an asbestos exposure during the course of discovery. For example, if a plaintiff fails to identify a manufacturer during his discovery deposition, the plaintiff will regularly stipulate to discontinue the claims against that manufacturer, and upon notice to all defendants, a dismissal will be ordered through a no opposition summary judgment motion.

The reasoning is sound. If at the close of discovery, the record is silent regarding liability, a defendant company should anticipate release.

Imagine the following: Plaintiff Paul alleges that he was in a multi-vehicle car accident on the FDR Drive, and was injured due to the negligence of defendants Andrew, Bob, Carl and David. The parties exchange information, and it is discovered that despite Paul's allegations of David’s involvement in the accident, he cannot recall David’s role. For David’s part, although he does not have an alibi, he also cannot recall ever being in an accident with Paul.

Andrew, Bob and Carl also cannot place David at the accident. Since no one can explain David’s connection to the accident, Paul agrees to release David through a stipulation, and without objection from any of the other defendants, the presiding judge so orders a dismissal. As the standard for summary judgment in New York requires an unequivocal defense as a matter of law, by obtaining the express release from all involved parties, David has legally established his defense and earned a dismissal of all claims.

Although asbestos cases are often more complicated — e.g., the theories of injuries regularly span decades and connect dozens of defendants — the underlying principle behind the dismissal remains the same. Where a plaintiff is unable to identify a defendant as a cause of his injuries, the parties will generally discontinue their claims and allow the defendant to exit the case.

The Impossibility Dismissal

The second theory of summary judgment allows dismissal where a defendant demonstrates that a plaintiff’s theory of liability is factually impossible. Imagine that plaintiff Paul has a car accident and alleges that he was injured due to the negligent driving of defendant David. David denies being the driver of any vehicle connected to the accident, and submits plane ticket receipts to affirmatively show that he was out of state at the time of the accident.

At this juncture, the burden for summary judgment will shift to Paul to show that David’s alibi is contested. Unless Paul is able to affirmatively discount David’s alibi (e.g., through GPS records, placing David in Manhattan at the time of the accident), David’s motion will most likely win. David has been able to prove on the evidence that Paul’s theory of liability is factually impossible. Summary judgment should be granted.[3]

Similarly, in asbestos cases, defendant companies are regularly sued based on a plaintiff’s belief that a product contained asbestos, causing the plaintiff to be exposed to asbestos particles. If it is later discovered that at the time of the alleged exposure, the company had completely ceased the incorporation of asbestos, the defendant company can seek summary judgment attaching proofs.

By affirmatively proving the foregoing, the burden will shift to the plaintiff to demonstrate that the defendant’s position can be opposed. In the NYC asbestos litigation, in cases where the defendant is able to shift the burden to the plaintiff, if the plaintiff is unable to contest the defendant’s proofs, the plaintiff will generally stipulate to release the defendant.

The No-Factual-Foundation Dismissal

Due to the latency issues between an exposure to asbestos and the manifestation of a disease, obtaining meaningful discovery is nearly impossible for asbestos-related personal injury actions. After the passage of decades, factual witnesses must rely on their memories to establish their theories.

Thus, where a plaintiff fails to establish a fact that would be materially necessary to draw an inference of liability, a defendant can obtain summary judgment. Under Sosa v. Joyce Beverages Inc.,[4] “the fact upon which it is sought to base an inference must be shown and not left to rest in conjecture. If and when the fact is shown, it must then appear that the inference drawn is the only one that is fair and reasonable.”

Again, an analogy to a motor vehicle accident is helpful to understand how the lack of a factual foundation can allow a summary judgment based dismissal. Imagine that plaintiff Paul is in a multi-vehicle accident in the city of Manhattan. He sues 14 parties, including the city of New York, the Metropolitan Transit Authority, the Taxi and Limousine Commission, Andrew, Bob, Carl and David, among others.

Although he remembers certain details about the car accident, many of the details necessary to clarify his theory of liability against defendant David are missing. Paul remembers that he was driving in the city of Manhattan and that it was dark and cold outside. He believes that some of the other drivers were Andrew, Bob, Carl and David. Regarding David, he remembers David was tall, bearded and drove a yellow sedan.

Other than these few facts, Paul is unable to remember anything else about the accident. In fact, Paul also has partial amnesia from the accident; he is unable to remember the date in which the accident took place, the time, the specific location of the intersection, the makes or models of any of the vehicles involved in the accident, or the conditions that precipitated the accident.

Additionally, there are no police reports, and the only evidence that the accident occurred is Paul’s invoice from his mechanic. In fact, Paul only obtained David’s information from a Google internet search. David, for his part, has no recollection of ever interacting with Paul, but he cannot deny that he drives a yellow taxi, that he is based out of Manhattan, that he occasionally has a beard and that he is six feet tall.

In the present example, some of the facts may be enough to draw reasonable inferences connecting the case to David. For example, with regard to David’s identity, Paul’s description matches David’s profile. The case law in New York requires courts to consider all issues of fact in favor of the nonmoving party. This being the case, it is likely that the court would infer David’s involvement in the accident (despite the fact that he was found through an internet search, and that this description also matches hundreds of other drivers in New York, many of whom drive taxis, and many of whom are also named David).[5]

Fatally for Paul’s case, the factual record is deafeningly silent in relation to David’s actual involvement in this case. Absent are any facts regarding the specific location of the accident, the date of the accident, the cars involved in the accident or any other foundational pieces which could explain David’s liability. In short, this is a car accident case, without any details related to the car accident. Without a factual foundation, there is no record upon which reasonable inferences can be drawn to attach liability to David.

The NYC Asbestos Litigation court has similarly been presented with numerous cases over the last few years which presented records that were factually deficient.

  • Cosgriff v. Aerco International. Inc.: A plaintiff’s inability to specify whether he was actually exposed to asbestos from a given product was grounds for summary judgment.
  • Mantovi v. American Bitrite Inc.: Although the plaintiff identified asbestos-containing floor tiles, “he could not recall the details as to what the tiles looked like, the type of box, the labeling on the box, or one of the locations where he specifically recalled the tiles. Thus, plaintiffs have not shown 'facts and conditions from which [ABI’s] liability may be reasonably inferred', or raise any issues of fact.”[6]
  • Leavitt v. A.O. Smith Water Products: A plaintiff’s inability to specify the building in which he worked with a company’s boiler (beyond that it was “the main building” in a campus of buildings) warranted summary judgment.[7]
  • Conklin v. American Biltrite Inc.: A plaintiff’s reliance on a record that did not specify a basis for how the plaintiff’s work with floor tiles could have exposed him to asbestos was grounds for summary judgment as a matter of law.[8]
  • Morris v. A.O. Smith Water Products: Although the plaintiff identified a product, he was unable to specify any parts of the product that could have contained asbestos, and admitted that the product was uniquely regarded in the industry. The court granted summary judgment stating that no factual foundation remained to draw an inference of actual exposure, and liability could not attach.[9]
  • Prestigiacomo v. Amchem Products Inc.: The plaintiff’s failure to remember the identity of a previously identified company during cross-examination, despite multiple attempts to refresh, was considered an improper identification of the company as a source of exposure. Summary judgment was granted.[10]

Underlying the decisions for each of these cases is a common theme: A plaintiff was unable to establish a factual foundation for a material issue in the case. Thus, no reasonable inference of liability could be drawn without resorting to speculation, and the court granted summary judgment.


Summary judgment is available in the NYC Asbestos Litigation where a defendant can show that the evidentiary record is devoid of a factual foundation upon which a reasonable inference of liability could be drawn. Although a defendant cannot prevail on summary judgment by simply “pointing to gaps in plaintiff’s proof,”[11] there is a distinction to be made between pointing at gaps and identifying a silent record.

In the prior example in which Paul partially remembered a physical profile that matched David, his sworn testimony could create a factual issue regarding David’s identity. This is clearly distinguishable from Paul’s inability to remember any material details related to the car accident. A motion for summary judgment based on the former points to gaps that are undergirded by corroboratory proof. A motion for summary judgment based on the latter points to foundational, material facts that are essential in order to produce deductive inferences.

If actual material facts are missing, such as quantification of exposure to a product (beyond “a lot”),[12] the location where the alleged exposure occurred (beyond “the main building”)[13] or whether a product contained asbestos,[14] then without additional evidence, one would be unable to draw any deductive conclusions beyond speculation that any actual exposure occurred. Thus, the NYC Asbestos Litigation court has reasoned that material factual foundations are necessary to draw reasonable inferences, and their absence should allow summary judgment.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] See Cosgriff v. Aerco International. Inc. , 2018 NY Slip Op 32712(U) (NY Sup., J. Mendez., 2018).

[2] Schiraldi v. U.S. Mineral Prods. , 194 AD2d 482 (1st Dept 1993).

[3] See Levene v. No. 2. W. 67th St. Inc. , 125 AD3d 541, 542 (1st Dept. 2015) (an affidavit and supportive records were sufficient to establish a defendant’s non-liability).

[4] Sosa v. Joyce Beverages Inc. , 552 NYS2d 612 (1st Dept. 1990).

[5] See Harper v. Murphy Overhead Doors Inc. , 131 AD2d 966 (3d Dept. 1987). The court properly refused to dismiss a products liability action against a defendant who allegedly manufactured or installed a defective garage door, although the plaintiff failed to present any evidence in admissible form showing the defendant’s connection to the door in question, where the defendant’s evidence demonstrated, at most, that it was uncertain whether or not it had anything to do with the damaged door. On summary judgment motion, a movant has the initial burden of making a prima facie showing that he is entitled to judgment as matter of law.

[6] Mantovi v. American Bitrite Inc. , 2019 NY Slip Op 30247 (U) (NY Sup., J. Mendez , Jan. 29, 2019) (internal citations omitted).

[7] Leavitt v. A.O. Smith Water Products , 2019 NY Slip Op 31916(U) (NY Sup. J. Mendez, July 1, 2019).

[8] Conklin v. American Biltrite Inc. , 2019 NY Slip Op 30962(U) (NY Sup., J. Mendez, April 4, 2019).

[9] Morris v. A.O. Smith Water Products, NYCAL Docket #190082/2009 (NY Sup., J. Mendez, April 15, 2019).

[10] Prestigiacomo v. Amchem Products Inc., NYCAL Docket #190386/2017 (NY Sup., J. Mendez, April 19, 2019).

[11] Ricci v. A.O. Smith Water Products , 143 AD3d 516 (1st Dept.).

[12] Corazza v. Amchemn Products Inc. , 170 AD3d 610 (1st Dept. 2019), was a First Department forklift case, where a plaintiff’s testimony failed to quantify exposure to asbestos beyond the words “a lot.” Thus, as a matter of law, there was no foundation for an expert, and the case was dismissed.

[13] Leavitt v. A.O. Smith Water Products.

[14] Morris v. A.O. Smith Water Products.