Refermat v. A.C. & S., Inc.

Appeal from an order of the Supreme Court, Erie County (James B. Kane, J.H.O.), entered March 18, 2004. The order denied the motion of defendant Duch Builders Supply, Inc. for summary judgment dismissing the second amended complaint against it. It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed with costs. Memorandum: In this action plaintiff seeks to recover damages for the injuries and wrongful death of decedent allegedly resulting from his exposure to asbestos contained in products sold by Henry R. Duch. Supreme Court properly denied the motion of Duch Builders Supply, Inc. (defendant) seeking summary judgment dismissing the second amended complaint against it. Defendant failed to establish as a matter of law that it is not liable for the torts of Henry R. Duch, its predecessor (see Meadows v Amsted Indus., 305 AD2d 1053, 1055 [2003]; cf. Hansen v Filtron Mfg. Co., 282 AD2d 433, 434 [2001]; see generally Schumacher v Richards Shear Co., 59 NY2d 239, 244-245 [1983]). Defendant also failed to establish that the products sold by Henry R. Duch could not have contributed to decedent’s injuries and death (see Matter of Eighth Jud. Dist. Asbestos Litig., 255 AD2d 1002, 1003 [1998]). Present — Green, J.P, Scudder, Martoche, Smith and Lawton, JJ.