North v Adam Opel AG
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North v Adam Opel AG 2015 NY Slip Op 32794(U) September 15, 2015 Supreme Court, Albany County Docket Number: AOI228/2014 Judge: Richard T. Aulisi Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: ALBANY COUNTY CLERK 10/02/2015 11:33 AM 1] INDEX NO. A01228/2014 NYSCEF DOC. NO. 346 RECEIVED NYSCEF: 10/02/2015 Albany County Clerk Document Number 11916881 Rcvd 10/02/2015 11 :29:27 AM STATE OF NEW YORK SUPREME COURT COUNTY OF ALBANY lllllllllmllllllll!l~lllllllll!IMllllllll LARRY NORTI! and CLAUDIA NORTI!. DECISION AND ORDER Plaintiffs. -vs- Index #AOI228/20I4 RJI #01-14-115902 ADAM OPEL AG. et al.. Defendants. 'l'he plaintiff5 commenced the within action to recover damages for personal injuries allegedly incurred by I,arry North, resulting from his exposure to ·various asbestos containing products. The plaintifTs com1ncnced this action on December l 0, 2014. by filing a summons and complaint in the Albany County Clerk's Office. Issue been conducted pursuant to ru1 \Vas subsequently joined and discovery has expedited schedule. 'fhis matter is currently scheduled for trial co1nn1encing October 6, 2015. '!'he defendant. Adam Opel AG (Opel), has made a motion to dismiss the plaintiffs' complaint, pursuant to CPLR §3211, for lack of personal jurisdiction. 'fhe defendant seeks to dismiss the n101ion on the theory that this Court has neither general nor specific personal jurisdiction over it because it ha'> no principal place of business in New York State and the plaintiffs' complaint is devoid of any allegations of Opel engaging in any in~state activity. Subsequently, the plaintiffs opposed the defendant's motion on the basis that further discovery is necessary on the issue of personal jurisdiction. The plaintiff. Larry North, wa'> diagnosed \.Vith malignant mesothc!ioma in June of2014. l-Ic alleges that he has developed mesothe!ion1a a~ a result of his exposure to various asbestos containing materials. For the purpose of the within motion to dismiss, he alleges his exposure occurred because of his work on various auton1obi\es. 'I'he plaintiff provided a list of vehicle::; at his deposition that he recalled \vorking on. ()fthe 19 vehicles listed, plaintifl avers that he owned a 1972 ()pel c:r1· which he acquired used from a private sale in or about 1980. Plaintiff [* 2] alleges that he was exposed to asbestos containing materials from the 1972 Opel Gl' because of the brake \Vork he pcrfo1med on it. Defendant is a foreign corporation located in Germany that manufactures vehicles. For the purposes of its genera[ personal jurisdiction argu1nent, the defendant relics on Dai1nler AG v _Baun1a11 ( 134 S.Ct. 746 l2014 ]), alleging that a corporation is only subject to general jurisdiction \Vhen it is incorporated in or has a principal place of business in the foru1n state, or is deen1ed to be otherv.·ise "at home" in that state. Defendant subinitted an affidavit and a supplemental affidavit from Joerg Bienzelscr, \\'ho is Senior Counsel of Product Development & Engineering at Opel in its legal department. In his affidavits, Mr. Bienzelser avers that the defendant has never been incorporated or had a principal place of business in New York. PlaintiflS, in their opposition papers, appear to concede that this Court does not have general personal jurisdiction over the defendant. Conversely. the plaintiffs argue that specific personal jurisdiction can be established pursuant to New York State's long-ann statute (see CPLR 302) . .!\!though the defendant avers that in 1972 a total of 12.805 units of the Ope! a·r were wholc-suled to General Motors Corporation (CJNI), a l)nitcd States company. it maintains that it had no further involvement beyond the sale. Defendant <lid not have any control over w·hcre the units were sold. 1curthermore. the defendant docs not have any information, ""/ithin its current records. regarding where the units were shipped 1• Nevertheless, the defendant argues that the plaintitis need to, but will be unable to, demonstrate a substantial nexus bet'l.veen the alleged acts of the defendant and '\Je'.V York State. Defendant contends that ~1r. North cannot recall from whom he purchased the vehicle and where the purchase occurred. Moreover. the defendant alleges that the plaintifl~ have failed to present any evidence of \Vherc the vehicle v.·as manufactured and ho\V it got to New York. In his affidavits. Mr. Bienzelser avers that defendant has never O\.Vlled, operated or controlled dealerships in Nc\v York or the lJnited States of America; docs not have (or had) any authorized or franchised dealerships in Nc"v '{ ork; docs not conduct any operations in Nev...· York an<l v• .-as 1 l ipon revic\v of the papers. it appears n1ore probable tl1an not that the \Vholesale units were sent to the state of Michigan. [* 3] not involved in any \Vay in the n1arkcting of Opel GTs in the lJnited States or in the production or distribution of any marketing materials. 1\dditional!y. the defendant argues that due process requires that it be sued in :\ev...· York based on its affiliation \\'ith the state and it should not he "haled into a jurisdiction solely as a result of rando1n. fortuitous. or attenuated contacts·· (I~L!_rger King Corp. v Rudzewicz. 471 US 462, 472 fl985][intemal quotation marks omitted I). Pursuant to CPI,R do1nici!iary the state. ~ \VhO .. COffilllitS 302(a)(3 )(ii). a court may exercise personal jurisdiction over a nona tOrtiOUS act \Vithout the state causing injUI)' tO [a_] person ... \Vi thin if[the non-domiciliary I expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce.·· Since the plaintiffs arc seeking to assert personal jurisdiction, they bear the burden of showing it (see Urifrer v SB Builders LI,C. 95 AD3d 1616 [3d Dept 2012]). ·rhe plaintiffs, ho...,·cver. are not required to make a prima facie sho\\·ing of personal jurisdiction, but only need to demonstrate that they have made a sutlicicnt start to \varrant further discovery (see Gottlieb v Merrigan, l J 9 AD3d l 054 [3d Dept 2014]). 'l'hus, if the plaintiffs can show that unavailable facts may exist giving the Court jurisdiction over the defendant and that their pleadings do not advance a frivolous position against the defendant, they may defeat the instant motion to dismiss (see Dine-A-Mate v J.B. Noble's Rest., 240 AD2d 802. 804 l3d Dept 1997]). Whc11 considering the papers, the plaintiffs have '·not established that additional discovery v.·ould disclose facts ·essential to justify opposition··· (Boulev v Bouley, 19 1\D3d 1049, I 051 [4th Dept] quoting CPLH. § 3211 fd]). As support, plaintiffs submitted, among other documentation, Gc11cral Motors Corporation's 2014 lO·K. magazine articles published in the lJnited States about Opel vehicl1.:s, n1arketing materials \Vith ·'Opel" \\-Titten on them and "Opel" advertisen1ents.~ Said papers fail to provide ·'any reasonable explanation as to vvhy the facts essential to justify opposition to disn1issal of [thi: complaint] could not be stated" (/\tlas Feather Corp v Pine ·rop lns. Co., 128 Al)2d 578 [2d Dept 1987]). Moreover. the plaintiffs· argun1cnts '- ·rhe c:ourt notes that the ()pc! corporation referenced in the plaintiffs· subn1issions may he a separate corporation fron1 the defendant Adan1 ()pel A(!. ()nits face. the plaintiffs' subn1issions do not specifically identify defendant as the branch of "Opel .. indicated or that the defendant had any involve1ncnt in the production of said 111aterials. [* 4] arc speculative: thcrefOre, the Court is not obligated to permit further discovery on the issue of personal jurisdiction (see Klein v Jarnor Purveyors, I 08 AD2d 344 [2d Dept I 985]). Based on the foregoing, the Court determines that the evidence proffered by the plaintiff'\ docs not warrant a sufficient start to necessitate further discovery (see Gottlieb v Merrigru1, 119 AD3d I 054 f 3d Dept 2014]). The (~ourt also notes that extensive discovery has been conducted on the merits. In his . deposition testimonv, Mr. North could not idcntifY the manufacturer of the brakes that he . removed tfom the 1972 Opel GT auton1obile and \Vith respect to the new brakes that Mr. North put on the car, these brakes were not manut3.cturcd by the defendant, Opel. Thus, l'v1r. North \Vas unable to identify any asbestos component (brakes) of the defendant that he may have rcn1oved from the l 972 Opel GT. ·rhe plaintiffs arc relying upon circumstantial evidence in assuming that the brake 1natcrials \Vere the original equipment on the vehicle, where the record reveals that Mr. North purchased the car \Vhen it \1.ras eight years old and had 25,000 miles on it. Accordingly. the defendant's 1notion to dismiss the plaintiffs' complaint for lack of personal jurisdiction is granted, \vithout costs. "J"his writing constitutes a Decisirpn of the Cou11. Signed this /.5- ~day o0f-"'~,Jµ_r' , 2015, at Johnstov.·n. New York. ' /----7f·"i - .~· --~- HON. RICHARDT. AlJL!SI Justice of the Supren1e Court ENTER ~zuyJ54>J MARLEN"i J. DION Deputy County Clerk !tf/tJ~UI $""
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