Golden v Alliance Laundry Sys.

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Golden v Alliance Laundry Sys. 2014 NY Slip Op 33613(U) February 5, 2014 Supreme Court, New York County Docket Number: 190160/13 Judge: Sherry Klein Heitler Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [*FILED: NEW YORK COUNTY CLERK 02/07/2014 1] INDEX NO. 190160/2013 NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 02/07/2014 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: PARrl3o !}] HON. SHERRY KLE1N HEITLER Justice Index Number: 190160/2013 GOLDEN, MARVIN 1NDEx No. VS. l q f loo 0 /t3 MOTION DATE _ _ __ ALLIANCE LAUNDRY SYSTEMS LLC SEQUENCENUMBER:001 VACATE MOTION SEQ. NO. CJD/ /i I ............__JJ:IO FF mNJ) .. ·~ ---==----'--4 ··-........ The following papers, numbered 1 to _ _ , were read on this motion t o / f o r - - - - - - - - - - - - - No(s) . _ _ _ _ __ Notice of Motion/Order to Show Cause - Affidavits - Exhibits Answering Affidavits - E x h i b i t s - - - - - - - - - - - - - - - Replying Affidavits _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ Upon the fo1egui119 pape1s, it is ordeFec;I I I No(s). _ _ _ __ I No(s). _ _ _ __ tl:la~ motion is is decided in accordance with ~e ·memorandum decision d:;ltP.d c~\.J . I'/, w u j:: en .., :J ~ c w 0:: 0:: w w 0:: >LL ...J ...J :J LL ~ e z 0 en I- ct u w w 0:: g, (!) z en 3: w 0:: - - 0 w ...J en ...J ct 0 U z 0 LL ~ ~ 1j:: 0:: 0 0 :!E LL Dated: ~,J.S.C. D NON-FINAL,, .,,DISPOSITION ' ., •.•••• ... ..... ... ....:..,1._,, " HON. SHERRY KLEIN HEITLER 1. CHECK ONE: ..................................................................... 0 CASE DISPOSED 2. CHECK AS APPROPRIATE: ........................... MOTION IS: 0 GRANTED 0 3. CHECK IF APPROPRIATE: ................................................ 0 SETTLE ORDER 0DONOTPOST .• DENIED • ··~ ~.,~ 0 0 GRANTED IN PART 0 OTHER SUBMIT ORDER 0 FIDUCIARY APPOINTMENT 0 REFERENCE [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 30 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- - --- . , - x Index No. 190160/13 Motion Seq. 001 MARVIN GOLDEN, Plaintiff, DECISION & ORDER -againstALLIANCE LAUNDRY SYSTEMS, et al., Defendants. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -~ - - - - "'." x SHERRY KLEIN HEITLER, J.: Pursuant to Section III, paragraph B ofth_e September 20, 199~ Case Management Order, as amended May 26, 2011 ("CMO"), which governs New YorkCity Asbestos Litigation ("NYCAL"), plaintiff moves to vacate the August 22, 2013 written recommendation of Special Master Shelley Rosoff Olsen which upheld the objecting-defendant's request that this. ca,se be excluded from this court's In-Extremis docket ("Recommendation"). 1 The Recommendation was issued on the ground that plaintiff Marvin Golden's three days of asbestos exposure alleged to have occurred at New York City's Brooklyn Navy' Yard was not significant enough in duration and quality of exposure to earn inclusion on the In-Extremis docket. Plaintiffs motion is opposed by Defense Liaison Counsel and defendant Hoffman/New Yorker, Inc. (collectively, "Defendants"). As set forth below, plaintiffs motion to vacate the Recommendation is granted. BACKGROUND CMO § XIII(A) provides that NYCAL cases shall be placed on one of three dockets: an A copy of the Recommendation is submitted as exhibit A to the opposition papers. -1-' [* 3] In-Extremis Docket2 , a FIFO Docket3 , and a Deferred Docket4 • In-Extremis clusters are designated twice a year, in April and October. All other active cases are placed on the FIFO docket. Plaintiff Marvin Golden, now approximately 85 years old and suffering from mesothelioma, commenced this asbestos personal injury action on April 19, 2013. Based on his diagnosis, this matter was included in this court's October 2013 In-Extremis trial cluster. Mr. Golden was deposed on July 11, 2013 and August 6, 2013. 5 He testified that from April of 1946 through May of 1947 he was exposed to Kaylo-brand asbestos-containing pipecoverings manufactured by Owens-Illinois while serving in the United States Coast Guard aboard the Coast Guard vessel "Mariposa", which was birthed in Staten Island. He testified to asbestos exposure while in dry dock at the Brooklyn Navy Yard (Deposition pp. 123-26, objections omitted): Arn I understanding you also worked at the Brooklyn Navy Yard when the US Q. Coast Guard Mariposa was tied up for about three days? A. Did you say worked there? Q. You were at least stationed there? A. Stationed there, right. Q. You didn't perform any work when you were at the Brooklyn Navy Yard; is that 2 In-Extremis cases are given a trial preference. The CMO provides that to be eligible for inclusion in an In-Extremis cluster, the plaintiff must be "terminally ill from an asbestos-related disease with a life expectancy ofless than one year" (CMO XIII[A][l]). Objections to trial preferences by placement on the court's In-Extremis calendar have been informally referred to in NYCAL as "forum" objections. 3 FIFO cases are clustered and scheduled for trial in an order determined by the date that the action was commenced. CMO § XV(B)(l). 4 Cases on the Deferred Docket consist of all cases that do not meet the medical criteria necessar)r to be included on the FIFO or In-Extremis Dockets. CMO § XV(C). 5 A transcript of Mr. Golden's deposition testimony is submitted as exhibit Z to the moving papers ("Deposition"). A transcript of Mr. Golden's de bene esse deposition is submitted as exhibit E to the moving papers ("Video Deposition"). -2- [* 4] correct? A. Worked on the ship. Q. Okay. What exactly did you do when you were working on the ship? .... A. Chipped and painted, cleaned latrines. That's about it. Q. My understanding is that you also talked about being in the vicinity of others that were applying Kaylo insulation to piping; is that. correct? A. That is correct. Q. Where exactly did you see this work being performed? Was it specific to one area of the ship or multiple areas? A. Two areas that I recall. Q. Can you tell me what those two areas are? A. The sleeping quarters below deck and the engine room .... Q. In the area in which you were present when they were applying the Kaylo, whose sleeping quarters was that work being performed in? A. In the -- our sleeping quarters, the general seamen .... Q. Okay. What was the air like when that work was being performed? A. Oh, the air. The air that would circulate through the sleeping quarters of a ship. Nothing special, no -- nothing mechanical. It's just the air that flowed through the area. Q. Was it dusty wheh the Kaylo product was being applied? A. Yes, it was. Q. Did you breathe that dust? A. Q. I imagine I did .... You also talked about work being performed in the machine room; is that correct? A. Engine room. Q. Okay. Were you present when the Kaylo was actually being applied in the engine I room? A. When we visited the engine room at that time, they were working on the pipes there. Q. Would that have been the same, you would not have been wearing a mask? A. No, no mask. Q. That would have been a dusty type of work in which, you believe you breathed the dust; is that correct? -3- [* 5] A. That is correct. Mr. Golden also testified that while living in Philadelphia as a child he was exposed to asbestos once every two to three weeks from press pads that his father used at the family's tailor shop (Video Deposition pp. 32-33, 39-40, 44-45, objections omitted): Q. How long was your father a tailor? . A. As long as I know, from the time I was born until I was about 16 years old.... Q. Okay. And at 4050 Market Street in Philadelphia, your family lived above your father's tailor shop? A. That is ... Behind and above.... Q. Can you tell us what type of equipment was inside your father's tailor shop? A. When you entered the shop from the street, there's a sewing machine on the right side of the store. There are cases for hanging garments on the left side, and further into the store was the pressing machine. **** Q. Did there ever come a time at Market Street where you had any involvement with the press? A. Yes, I guess age nine or ten when the pads had to be changed on the Hoffman pressing machine, I would assist my father .... Q. Could you describe the new pads, the appearance of the new pads that you would. install? .... A. Well, it was the shape of an ironing board, muslin cover with a string that ran along the edges that could be pulled tight and locked over the buck. Muslin color, dark brown, I guess or yellow ... White/yellow, something like that. There were two layers of white material under the cover, probably three-quarters of an inch thick, cotton or flannel, and then a white asbestos sheeting about a quarter inch thick that was at the bottom. **** Q. Was there ever a time during that, you know, seven-year time period, from about when you were nine until you were 16, that you changed out these pads on your own without assistance of your father? . . . . · A. When I got older, I was able to handle the whole thing myself.... Q. And could you walk us through in detail tqe process of changing out one of these · press pads? . . . -4- [* 6] A. Okay. The machine would be turned off and cooled, because you couldn't take the ... Mess around with it while the buck was hot. So after it cooled off we would untie the string that attached the pad to the buck. We would pull it off, 'break it up; . and of course, by breaking it up, we evidently were releasing dust from the asbestos, and we broke that up; and after we got the pad off and broken up, we would have to then scrape the buck, and we had a wire brush to scrape the remnants of the asbestos off the buck; and thenafter that was done, we'd have to sweep.up the floor. There was dust from the ... Taking the pad off the buck. There would be dust flying all over the room, and we would have to wait until that settled, and then we'd have to sweep the floor and dispose of the pad and put the new pad on. Mr. Golden does not allege any other asbestos exposure. On July 25, 2013, the Defendants submitted a formal objection to the inclusion of this case on the October 2013 In-Extremis docket by the s·pecial Master. On August 4, 2013, the Special Master issued a written recommendation which denied the Defendants' forum objection. Upon reargument, the Special Master altered her prior recommendation, upheld the Defendants' forum objection, and issued the Recommendation at issue herein. The parties assert diametrical positions regarding the "quality" of Mr. Golden's alleged asbestos exposure while his ship was stationed at the Brooklyn Navy Yard. Plaintiff contends that such exposure was a substantial contributing cause of his mesothelioma and as such the Special Master's Recommendation should be vacated. The Defendants contend that Mr. Golden's three days of alleged bystander exposure while he was stationed at the Brooklyn Navy Yard is not a significant nexus to New York City as to gamer inclusion on this court's October 2013 In-Extremis docket when compared to his many years of exposure at his father's Philadelphia tailor shop. DISCUSSION The issue of so-called forum objections to a party's right to a trial preference in NY CAL was recently discussed in my decision in Stitt v Burnham Corp, et al., 2013 NY Misc. LEXIS -5- [* 7] 4049, Index No. 190478/12 (Sup. Ct. NY. Co. Sept. 4, 2013), which was not disseminated until after the issuance oflhe RecomIQ-endation herein. In Stitt I explained that, in addition to the medical requirements set forth in the CM06, a plaintiff must demonstrate some nexus to New York City for inclusion in this court's In-Extremis docket (id., supra, at *6): While the CMO does not expressly state that a NYCAL plaintiff must demonstrate a nexus between his exposure and New York City in order for his case to be placed in an InExtremis cluster, this court has explicitly articulated such requirement as a qualifying standard, i.e., there "must be a nexus to New York City for a case to remain on an InExtremis docket and that forum objections should be addressed on a case-by-case basis." Logan v A.P. Moller-Maersk, Inc., Index No. 190203112 (Sup. Ct. NY Co. June 17, 2013, 7 . Reitler, J.). Contrary to counsel's characterization of this court's prior decisions, I have never adopted a "significant exposure" requirement in terms of a plaintiffs placement on a NYCAL In-Extremis docket. Nor does the forum objection issue tum on whether a matter is properly venued in New York County (CPLR 500, et seq.) or whether New York State is a convenient forum (CPLR 327). As set forth in Stitt, the NYCAL In-Extremis requirement is a demonstrated nexus to New York City. While the parties have relied on the recommendations of prior Special Masters in respect 8 of forum objection standards for many years, they have no basis in law. Rather, the judicial standards set forth in this court's decisions in Logan and Stitt control. Mr. Golden's testimony which undeniably demonstrates a nexus to New York City 6 See FN2, supra . . 7 In Stitt the court inadvertently cited Logan as having been decided on June 17, 2013 when it was in fact decided on February 15, 2013. See recommendations in O'Connor v Air & Liquid Systems Corp. et al., Index No. 190156/10, Stitt v Burnham Corp., et al.,Index No. 190478/12, Lowe v. Air & Liquid Systems Corp. et al., Index No. 190332/11, and Logan v. A.P. Moller-Maersk, Inc., et al., Index No. 190203/12, submitted respectively as exhibits E, F, G, and H to the opposition papers. -6- [* 8] dictates that this case remain on the NYCAL In-Extremis docket. Moreover, under CPLR 3403 and CPLR 3407, Mr. Golden is entitled to a trial preference given his age and condition. 9 Accordingly, it is hereby ORDERED that plaintiffs motion to vacate the Special Master's August 22, 2013 Recommendation is granted, and it is further ORDERED that the Special Master is directed to place this matter on this court's October 2013 In-Extremis docket. This constitutes the decision and order of the court. DATED: 9 d. s-. I t SHERRY~J.S.C. In Stitt the court gave the plaintiff the option to transfer his case to and seek a trial preference in Suffolk County, New York because the entirety of his alleged exposure occurred there. -7-

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