Judge Denies DAP’s Motion for Summary Judgment Despite the Defendant Presenting Affidavits

For purposes of this article, the mesothelioma victim in this case will be referred to as P.J.M.

In a recent court decision, Justice Adam Silvera denied DAP’s motion for summary judgment despite them presenting affidavits provided by their employee. In this case, the family of P.J.M., who passed away due to mesothelioma, an illness that develops due to asbestos exposure, named DAP Inc. and others as defendants. The family blamed P.J.M.’s disease on exposure to several products that contained asbestos. DAP requested dismissal from the case by filing a motion for summary judgment. The defendant claimed it did not make or sell the products the family is blaming for Mr. P.J.M.’s illness. Despite DAP’s assertion, the court denied the petition and allowed the case to proceed.

Often, defendants in mesothelioma lawsuits and other asbestos-related lawsuits seek dismissal by arguing that the lawsuit is baseless. It is common for defendants to argue that their products were not involved in the plaintiff’s asbestos exposure. It is common for defendants to claim that their products could not have contributed to the claimant’s illness. However, in the New York County Supreme Court, such arguments are often denied because the bar for dismissal is high. Defendants are typically required to unequivocally establish that their products could not have caused the claimant’s injury.

In this case, DAP filed a motion for summary judgment, requesting to be dismissed from the case on the grounds that Mr. P.J.M.’s family could not establish a direct link between his asbestos exposure and their products. To support these claims, DAP submitted two affidavits from an employee. According to the employee, the company had never manufactured, sold, or supplied the products mentioned in P.J.M.’s deposition.

P.J.M.’s family rebutted DAP’s claims by pointing to testimony their loved one had given about working with asbestos-contaminated products manufactured by DAP, specifically joint compounds. The judge reviewed the affidavits and the deposition testimony from the deceased. The judge’s review focused on whether the defendant had met the strict requirements for summary judgment. The judge found that DAP had failed to meet its burden of proof. Judge Adam Silvera deemed the affidavits inadequate as they were from someone who lacked personal knowledge to prove that DAP had not manufactured, sold, or supplied the products described in the deposition and that P.J.M. had not been exposed to asbestos through those products.

In New York, affidavits presented in support of a request for summary judgment must be based on factual evidence. The affidavits presented by DAP were not based on factual evidence. DAP presented no specific evidence to counter the allegations against them. Since the affidavits lacked substantive factual content and relied on unsupported assertions, Judge Adam Silvera found they could not overcome the “unequivocal testimony” Mr. P.J. had provided in his deposition before his passing.

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