Perdicaro v. A.O. Smith Water Products

Order, Supreme Court, New York County (Helen E. Freedman, J.), entered February 25, 2008, which denied defendant Treadwell’s motion for summary judgment dismissing the complaint and all cross claims as against it, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment dismissing the complaint and all cross claims as against Treadwell. In opposition to Treadwell’s prima facie showing of entitlement to summary judgment, plaintiffs’ evidence failed to raise a factual issue whether plaintiff worker (a Con Edison employee) was present at various Con Edison powerhouses at the same time Treadwell workers or its subcontractors were installing alleged asbestos-based insulation on new equipment. Plaintiff worker’s evidence was insufficient to raise a triable issue of fact whether he was exposed to asbestos-based insulation at any given time at the powerhouses. He admittedly lacked training in insulating work, and offered no factual support that would reasonably suggest that the insulation he saw in use at the time he was purportedly present at the Con Ed powerhouses was asbestos-based; the evidence indicated that insulation utilized at these powerhouses often contained fire/heat-resistant components other than asbestos. Although the record indicated Treadwell had ordered asbestos-content paper, glass-cloth and millboard in connection with Con Edison’s Arthur Kill contract, there was no testimony from plaintiff worker that he ever observed the use of such materials at the Arthur Kill construction site. It would be purely speculation to assume that such insulating materials were used during his sporadic and limited presence at the Arthur Kill powerhouse. We find, as matter of law, that plaintiffs’ evidence in opposition to the motion was insufficient to raise a factual issue whether Treadwell’s acts constituted a substantial factor in causing plaintiff worker’s alleged lung disease (see Diel v Flintkote Co., 204 AD2d 53 [1994]). Concur—Tom, J.P, Mazzarelli, Gonzalez, Sweeny and DeGrasse, JJ.