Efforts by a regional port authority and insurer to avoid an asbestos lawsuit fizzled out recently when a New York state appellate court rejected their motion to throw out the case before going to trial.

The Supreme Court of the State of New York — Appellate Division, First Judicial Department — denied a summary judgment motion from the Port Authority of New York and New Jersey, as well as insurer American Home Assurance Company, according to a Feb. 5 release.

The court — the second highest in the state, despite the name — unanimously rejected the motion, which would have ended a civil suit filed by Seval Morgan on behalf of the late Bernd Hildebrand, a former Pan American World Airways employee who died of pleural mesothelioma in June 2015.

Morgan sued the port authority and the insurer in 2016, alleging violations of New York labor laws, negligence and strict product liability. The suit, which sought compensatory and punitive damages, was forced to rely on Hildebrand’s former coworkers for evidence, as he died before he could be deposed in the case, according to the release from the plaintiff’s attorneys, Shrader & Associates.

Issues of Fact

The lawsuit ran into an early snag in October 2019, when a lower court judge sent the defendants’ summary judgment motion up the chain, concluding that there were “issues of fact precluding dismissal” of two major elements of the case: allegations that the defendants violated New York Labor Law Section 200 and common-law negligence claims.

However, the appellate court ultimately rejected the defense motion, concluding that “there are at least issues of fact” concerning whether the port authority “had the authority to control the activity bringing about the injury;” meaning the use of asbestos-containing materials at the airport terminal where Hildebrand worked for Pan Am in the 1970s. Part of the port authority’s lease gave it the right to conduct testing on any potentially carcinogenic materials, and construction work at the airport required its approval, the supreme court noted.

The supreme court ruling also cited testimony from one of Hildebrand’s coworkers as raising “issues of fact” as to whether Hildebrand was exposed to asbestos fibers. And the supreme court likewise rejected the defendants’ efforts to label coworker testimony as “hearsay,” given how long ago this happened and because Hildebrand died before he could be deposed.

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