The Supreme Court of New York, Appellate Division, Third Department, recently handed down a decision that is likely to have a negative impact on defendant former suppliers of asbestos-containing products in New York asbestos litigation.

In O’Connor v AERCO Intern., Inc., the Plaintiff was diagnosed with pleural mesothelioma alleging that her illness stemmed from exposure to asbestos-containing products while working at the Westchester County Department of Labs and Research (hereinafter, “the lab”). O’Connor v AERCO Intern., Inc., 2017 NY Slip Op 05487 [3d Dept July 6, 2017]. Plaintiff brought suit in the Supreme Court in Saratoga County (4th JDAL) against, among others, three alleged suppliers (hereinafter, “defendants”) of asbestos-containing products. Id.

Deposition testimony was offered to establish that were asbestos-containing products in the lab during Plaintiff’s employment and that lab employees consulted defendants’ supply catalogs, among others, to place orders for these products. Id.  One witness testified that the lab had contracts with two of the three suppliers. Id. None of the deponents could offer testimony as to whether any of the defendants’ brand names, trademarks or logos was present on the alleged asbestos-containing products. One defendant argued that they had no records of sales to the lab. Id.

The defendants each moved for and were granted summary judgment on the grounds that plaintiffs failed to adequately identify any of them as the suppliers of the asbestos-containing products at issue. Id. The 3rd Department reversed. Id.

The 3rd Department stated that the “defendants bore the initial burden of demonstrating that their respective products ‘could not have contributed to the causation’ of [Plaintiff’s] asbestos-related injuries.” Id. citing Matter of New York City Asbestos Litig., 116 AD3d 545, 545, 984 N.Y.S.2d 45 [2014]. “Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers” Id. citing Alvarez v Prospect Hosp., 68 NY2d 320, 324, 501 N.E.2d 572, 508 N.Y.S.2d 923 [1986].

The 3rd Department concluded that “a defendant cannot prevail on a motion for summary judgment merely by correctly arguing that the record before a court on the motion would be one which, if presented at trial, ‘would fail to [satisfy a plaintiff’s] burden of proof and the court would be required to direct a verdict for defendant.’” Id. citing Yun Tung Chowv Reckitt & Colman, Inc., 17 NY3d 29, 35, 950 N.E.2d 113, 926 N.Y.S.2d 377 [2011]. The court reasoned that “plaintiffs’ burden to establish a material issue of fact as to ‘facts and conditions from which [defendants’] liability may reasonably be inferred’ is only triggered in the event that a moving defendant made the aforementioned prima facie showing. Id. citing Matter of New York City Asbestos Litig., 216 AD2d 79, 80, 628 N.Y.S.2d 72 [1995].

Note that, in New York, trial courts in a given appellate department are required to follow precedent set by another department until the Court of Appeals or the department in which the trial court sits pronounces a contrary rule.  See Mtn. View Coach Lines, Inc. v Storms, 102 AD2d 663, 664 [2d Dept 1984]. Thus, former suppliers of asbestos-containing products sued in venues throughout New York, might bear the burden of showing that they “could not have contributed to causation,” to get out of a case on a motion for summary judgment.