Roman v Harris & Bruno Mach. Co., Inc.
Annotate this CaseDecided on April 30, 2009
Supreme Court, Orange County
Zenaida Roman, Plaintiff,
against
Harris & Bruno Machine Co., Inc., Longview Fibre Company, Ampac Packaging, LLC, Newlong Machine Works, Ltd., Newlong Industrial Co., Ltd., New Pack Company, Ltd., Ampac Spanish Fork LLC, Cental Jersey Trucking and Rigging, Inc., RPF Associates, Inc., Robert P. Firmbach, and John Does 1 though 10, and XYZ Corporations 1 though 10, Defendants.
4937/2008
TRAUB, LIEBERMAN, STRAUS & SHREWSBERRY, LLP
Attorneys for Defendant Central Jersey Trucking and Rigging, Inc.
Mid-Westchester Executive Park
Seven Skyline Drive
Hawthorne, NY 10532
LAW OFFICE OF THOMAS K. MOORE
HARRIS & BRUNO MACHINE CO., INC.
Attorneys for Defendant
701 Westchester Avenue
White Plains, NY 10604
VOUTE, LOHRFINK, MAGRO & COLLINS, LLP
Attorneys for Defendants
AMPAC PACKAGING, LLC., and AMPAC SPANISH FORK, LLC.
170 Hamilton Avenue
White Plains, NY 10601-1789
L'ABBATE, BALKAN, COLAVITA & CONTINI, LLP
Attorneys for Defendant ROBERT P. FIRMBACH
1001 Franklin Avenue, 3rd Floor
Garden City, NY 11530
HERZFELD & RUBIN
Attorneys for Defendant LONGVIEW FIBRE COMPANY, INC.
40 Wall Street, 54th Floor
New York, NY 10005
LARKIN, AXELROD, INGRASSIA & TETENBAUM, LLP
Attorneys for Plaintiff
34 Route 17K
Newburgh, NY 12550
Lewis J. Lubell, J.
Plaintiff brings this action sounding in negligence, strict products liability, and breach of warranty for personal injuries allegedly sustained during the course of her employment with non-party Ampac Paper, Inc. when, on May 10, 2005, her hand became caught between two rollers in a paper bag making machine (the "machine") allegedly due to the lack of a finger guard. All three theories of recovery are asserted against each of the defendants, except Cental Jersey Trucking and Rigging, Inc. ("Central Trucking") against whom only a claim for negligence is brought. The action has since been discontinued as against RPF Associates, Inc.
This action was commenced upon plaintiff's May 12, 2008, filing of a summons and [*2]complaint with clerk of the court. Just days prior to this, however, plaintiff commenced a similar against the same defendants in the United States District Court of the District of Massachusetts.
According to plaintiff, defendant Longview Fibre Company ("Longview") purchased the machine new from defendant Newlong Machine Works, Ltd. which shipped the machine from Japan to Massachusetts for use at Longview's plant in Waltham, Massachusetts. Plaintiff avers that Longview sold the machine to defendant Ampac Packaging, LLC or defendant Ampac Spanish Fork, LLC. Thereafter, the machine was disassembled and moved from Massachusetts to non-party Ampac Paper Inc.'c facilities in Walden, New York.
Defendant Harris and Bruno Machine Co., Inc. allegedly designed, manufactured and assembled ancillary parts and equipment for the machine in the state of Massachusetts, allegedly at the request of Longview. John Does 1 through 10 and XYZ Corporations 1 through 10 allegedly removed one or more guards from the machine.
Motion "1"
Plaintiff's motion for an ORDER pursuant to CPLR §§ 306-b and 2004 extending the time for plaintiff to serve the summons and complaint upon defendants Newlong Machine Works, LTD, Newlong Industrial CO., LTD, and New Pack Company, LTD (collectively referred to as the "Newlong Defendants", unless otherwise noted) is granted.
CPLR 306-b provides that "[i]f service is not made upon a defendant within the time provided in this section, the court, upon motion, shall ..., upon good cause shown or in the interest of justice, extend the time for service." Further, CPLR §2004 provides:
Except where otherwise expressly prescribed by law, the court may extend the time fixed by any statute, rule or order for doing any act, upon such terms as may be just and upon good cause shown, whether the application for extension is made before or after the expiration of the time fixed.
By Decision & Order of September 18, 2008, the Court (Giacomo, J.) granted plaintiff's first motion thereby extending service to October 24, 2009. Having been unsuccessful in effecting service upon Newlong Machine Works, LTD, Newlong Industrial CO., LTD, and New Pack Company, LTD within that time frame, plaintiff filed a second motion. That motion was eventually withdrawn when it became apparent to plaintiff that service could not take place by the time requested in that motion. Even though this is plaintiff's third motion for such relief, the Court finds that plaintiff has established good cause for the relief and that it would be in the interest of justice to grant same
In support of this application, plaintiff gives the Court a detailed account of her past applications and diligent and good faith efforts to effect service upon Newlong Machine Works, LTD, Newlong Industrial CO., LTD, and New Pack Company, LTD in Japan under the Hague [*3]Service Convention and her continuing efforts to accomplish same. Plaintiff has also established that Newlong Machine Works, LTD and Newlong Industrial CO., LTD have been provided with a copy of this motion through counsel with whom plaintiff's counsel has had past communications regarding the case, although notice of same is not generally required.
Upon consideration of the foregoing, the Court finds that for good cause shown and in the interest of justice the motion should be granted with plaintiff's time to serve a summons and complaint upon the Newlong Machine Works, LTD, Newlong Industrial CO., LTD, and New Pack Company, LTD extended to and including May 22, 2009.
Motion 2
Ampac Packaging, LLC and Ampac Spanish Fork, LLC's (collectively referred to as "Ampac", unless otherwise noted) motion for an ORDER pursuant to CPLR §§ 3211(a)(8) and (e) dismissing the complaint as against them upon the ground that in personam jurisdiction cannot be conferred upon the Court pursuant to CPLR § 302 is denied without prejudice as herein indicated.
There is no dispute that Ampac Packaging, LLC is a Delaware corporation and Ampac Spanish Fork, LLC was a Delaware corporation before its dissolution in September 2007. As such, subsection "a" of section 302, entitled "Personal jurisdiction by acts of non-domiciliaries", comes into play. It reads as follows:
(a) Acts which are the basis of jurisdiction. As to a cause of action arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any non-domiciliary, or his executor or administrator, who in person or through an agent:
1. transacts any business within the state or contracts anywhere to supply goods or services in the state; or
2. commits a tortious act within the state, except as to a cause of action for defamation of character arising from the act; or
3. commits a tortious act without the state causing injury to person or property within the state, except as to a cause of action for defamation of character arising from the act, if he
(i) regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in the state, or
(ii) expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce; or [*4]
4. owns, uses or possesses any real property situated within the state.
To the extent relevant to this motion, Ampac highlights those aspects of the complaint wherein it is alleged that all or some of the Newlong Defendants had designed, manufactured and placed into the stream of commerce the machine which ultimately became the property of defendant Longview Fibre, Co. ("Longview"), some of whose assets where purchased by Ampac Packaging, LLC in 2004. Prior thereto, however, defendant Harrison Bruno Machince Co., Inc. had performed some work on the machine which, thereafter, was transported from Waltham, Massachusetts to Walden, New York. This was accomplished by the disassembly of the machine by defendant Central New Jersey Trucking & Rigging, Inc. ("Central Trucking") at Longview's Massachusetts facility and its reassemble by Central Trucking in Walden.
The thrust of Ampac's argument is that the mere shipment of goods into New York does not invoke the applicability of CPLR § 302(a)(1). Furthermore, the fact that Ampar Paper, Inc. is one of Ampac's wholly owned subsidiary is of no moment, it argues, since Ampac Paper, Inc. functioned neither as agent of a department of the foreign parent, Ampac.
The Court agrees with plaintiff who, in response to this motion, asserts that the application is premature and should be made following disclosure which has yet to take place (see, CPLR § 1101[d]; Peterson v. Spartan Industries, 33 NY3d 463, 464-465 [1974]]plaintiff need not establish "prima facie jurisdiction" before obtaining discovery directed to whether there is jurisdiction over a foreign corporation under CPLR § 302]). The Court is satisfied that, in response to this motion, plaintiff has come forward with a sufficient demonstration that facts "may exist" that are sufficient to defeat the motion (id at p 466-467).
Accordingly, the motion is denied without prejudice to reapplication upon the close of discovery on the issue of jurisdiction which the Court suggests should be given due priority.
MOTION 3 and MOTION 5
Central Trucking's motion for an ORDER dismissing the complaint pursuant to (a) CPLR § 3211(a)(8) due to plaintiff's failure to have obtained jurisdiction over defendant by failing to accomplish proper service pursuant to CPLR § 311, (b) CPLR § 214(4) upon the ground that the action is time barred, and (c) CPLR § 3211(a)(4) due to the existence of another action pending between the same parties for the same cause of action in the United States District Court for the District of Massachusetts and plaintiff's cross-motion pursuant to CPLR§306-b for an ORDER extending the time for plaintiff to serve the summons and complaint upon defendant Central Trucking are hereby adjourned to May 8, 2009 by which date counsel for the respective parties are to advise the Court in writing as to whether to motions have been withdrawn or not.
MOTION 4
Longview Fibre Company's motion for an ORDER pursuant to CPLR §3211(a)(4) and (8) [*5]dismissing the action as against it on the grounds that the Court does not have jurisdiction over it is expressly unopposed and, as such, is granted.
All parties against whom this action is still pending and which have been served shall appear before the Court at 9:30 a.m. on June 2, 2009 for a Preliminary Conference and/or a Status Conference, as the case may be.
The foregoing shall constitute the decision and order of the Court.
Dated: Goshen, New York
April 30, 2009
HON. LEWIS J. LUBELL, J.S.C.
TO:
TRAUB, LIEBERMAN, STRAUS & SHREWSBERRY, LLP
Attorneys for Defendant Central Jersey Trucking and Rigging, Inc.
Mid-Westchester Executive Park
Seven Skyline Drive
Hawthorne, NY 10532
LAW OFFICE OF THOMAS K. MOORE
HARRIS & BRUNO MACHINE CO., INC.
Attorneys for Defendant
701 Westchester Avenue
White Plains, NY 10604
VOUTE, LOHRFINK, MAGRO & COLLINS, LLP
Attorneys for Defendants
AMPAC PACKAGING, LLC., and
AMPAC SPANISH FORK, LLC.
170 Hamilton Avenue
White Plains, NY 10601-1789
L'ABBATE, BALKAN, COLAVITA & CONTINI, LLP
Attorneys for Defendant ROBERT P. FIRMBACH
1001 Franklin Avenue, 3rd Floor
Garden City, NY 11530
HERZFELD & RUBIN
Attorneys for Defendant LONGVIEW FIBRE COMPANY, INC.
[*6]
40 Wall Street, 54th Floor
New York, NY 10005
LARKIN, AXELROD, INGRASSIA & TETENBAUM, LLP
Attorneys for Plaintiff
34 Route 17K
Newburgh, NY 12550
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