Matter of Eighth Judicial Dist. Asbestos Litig.

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Matter of Eighth Judicial Dist. Asbestos Litig. 2016 NY Slip Op 32987(U) November 21, 2016 Supreme Court, Erie County Docket Number: H95716 Judge: Deborah Chimes 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: 1] ERIE COUNTY CLERK 01/10/2017 11:05 AM NYSCEF DOC. NO. 77 INDEX NO. 801300/2016 RECEIVED NYSCEF: 01/10/2017 At a Special Term, Part 33 of the Supreme Court of the State of New York held in and for the County of Erie at the Erie County Courthouse on the 21st day ofNovember, 2016. PRESENT: Hon. Deborah A. Chimes. J.S.C. Justice Presiding SUPREME COURT OF THE STATE OF NEW YORK EIGHTH JUDICIAL DISTRICT In Re Eighth Judicial District Asbestos Litigation This Document Applies to All Pending Cases Listed Below and all Actions herein after commenced in which Honeywell International Inc., as the alleged successor-ininterest to Wilputte Coke Oven Division of Allied Chemical Corporation is named as a Party Defendant. EIGHTH JUDICIAL DISTRICT ASBESTOS LITIGATION Index Nos.: H95716 801382/2014 ORDER SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ERIE SUZETTE M. BAGINSKI, Executrix of the Estate of HENRY J. BAGINSKI, Deceased, Index No.: I2005/9068 Plaintiff(s), v. A. W. CHESTERTON COMPANY, et al., Defendants. CAROLYN BANKS, Index No.: 803640/2015 Plaintiff, v. 84 LUMBER COMPANY, ET AL., 1 of 12 [* 2] Defendants. RICHARD BU GALA and SHIRLEY BU GALA, his spouse, Index No.: I-2002-8703 Plaintiffs, v. ANCHOR PACKING, et al., Defendants. LINDA CALOS, as Executrix for the Estate of ARTHUR DARMSTEDTER, Index No.: 800630/2014 Plaintiff, v. AIR & LIQUID SYSTEMS CORPORATION as successor-by-merger to BUFFALO PUMPS, INC., et al., Defendants. ALICE E. CARSON, as Executrix of the Estate of SAMUEL D. CARSON, Deceased, and Individually as the Surviving Spouse of SAMUEL D. CARSON, Index No.: 802494/2015 Plaintiff, v. AIR & LIQUID SYSTEMS CORPORATION as successor by merger to BUFFALO PUMPS, INC., et al, Defendants. EDWARD M. and ELIZABETH COLLINS, Plaintiffs, -2 2 of 12 Index No.: I-2002-5645 [* 3] v. ACandS, INC., et al., Defendants. LINDA R. FAHEY and EUGENE FAHEY, Index No. 803024/2015 V. 84 LUMBER COMP ANY Index No.: I-2003-1421 PAUL J. FUSCO, Plaintiff, v. A. W. CHESTERTON, et al., Defendants. JEROME A. GRABOWKSK.I [sic] and PATRICIA GRABOWSKI, his spouse, Index No.: I2002-10570 Plaintiffs, v. A. W CHESTERTON COMPANY, et al., Defendants. CHRISTINE HENDRA, as Executrix for the Estate of TERRY HENDRA, and CHRISTINE HENDRA, Individually, Plaintiff, v. -33 of 12 Index No.: 800180-13 [* 4] AIR & LIQUID SYSTEMS CORPORATION, as successor-by-merger to BUFFALO PUMPS, INC., et al., Defendants. KATHLEEN R. HUBER and KAREN M. STERMAN, Co-Executrices of the Estate of ROBERT F. WOPPERER, Deceased, and LORAINE WOPPERER, Individually and as the Surviving Spouse of ROBERT F. WOPPERER, Index No.: 12012002918 Plaintiffs, v. BEAZER EAST, INC., f/k/ a KOPPERS COMPANY, INC., et al., Defendants. WARREN A. JENSEN and LINDA J. JENSEN, his spouse, Index No.: 801300/2016 Plaintiffs, v. AIR & LIQUID SYSTEMS CORPORATION as successor by merger to BUFFALO PUMPS, INC., et al., Defendants. KATHY KELLY-HAYES, as Proposed Executrix of the Estate of MATTHEW KELLY and MARY JANE KELLY, Individually as Living Spouse, Plaintiffs, v. A. 0. SMITH WATER PRODUCTS, et al., Defendants. -44 of 12 Index No.: 2009-10502 [* 5] LAUREL MCCLELLAN and NOELL MCKERNAN, as Co-Executrices for the Estate of WILLARD H. HAAS and IRMA HAAS, Individually, Index No.: 80864512014 PlaintiffS, V. AIR & LIQUID SYSTEMS CORPORATION, as successor-by-merger to BUFFALO PUMPS, INC., et al., Defendants. SHAWN MCCLOUD, Index No.: 809287/2015 Plaintiff, v. A. 0. SMITH WATER PRODUCTS CO., et al., Defendants. PAMELA MISURACA, as Executrix for the Estate of ARTHUR A. MISURACA, and PAMELA MISURACA, Individually, Index No.: 808643/2014 Plaintiff, V. A. 0. SMITH WATER PRODUCTS CO., eta!., Defendants. MARIANNE NARCOWICH, as Personal Representative for the Estate of NORMAN B. COURTNEY and JEANETTE COURTNEY, Individually, Plaintiffs, -55 of 12 Index No.: 800460/2014 [* 6] v. AIR & LIQUID SYSTEMS CORPORATION, et al., Defendants. RICHARD C. NICOSIA, Index No.: 814073/2015 Plaintiff, v. BEAZER EAST, INC. f/k/a KOPPERS COMP ANY, et al. Defendants. JERRELDINE SANFORD, as Administratrix for the Estate of CLEVELAND PIERSON, Index. No.: I 2006-8628 Plaintiff, v. AMCHEM PRODUCTS, INC., n/k/a RHONE POULENC AG COMPANY, n/k/a BAYER CROPSCIENCE INC., et al., Defendants. RICHARD M. SCHWEICHLER, Executor of the Estate of RICHARDS. SCHWEICHLER, Deceased, Index No. 808293/2016 Plaintiff, v. BEAZER EAST, INC. f/k/aKOPPERS COMPANY, INC., f/k/a THIEM CORPORATION in its own right and as successor to UNIVERSAL REFRACTORIES, INC., et al., Defendants. -6 6 of 12 [* 7] DONALD J. TERWILLIGER, Administrator of the Estate of DONALD R. TERWILLIGER, Deceased, Index No.: I2013-1195 Plaintiff, v. BEAZER EAST, INC., the company formerly known as KOPPERS COMPANY, INC., et al., Defendants. Index No.: 2007-6697 ARTHURJ. TILLMAN, SR., Plaintiff, v. BEAZER EAST, INC., as successor in interest to KOPPERS COMPANY, INC., et al., Defendants. Index No.: I 1997002361 BROWNIE KENCEL, Plaintiff, v. ACANDS, INC., et al., Defendants. WILLIAM DALEY, IndexNo.: I1996/9962 Plaintiff, v. ACANDS, INC., et al., -77 of 12 [* 8] Defendants. GARY J. PRITCHARD and KARENM. PRITCHARD, his spouse, Index No.: !1197-2155 Plaintiffs, v. A. P . GREEN INDUSTRIES, INC., et al., Defendants. LAVERN PRICE and MARGIE PRICE, his spouse, Index No.: II 197-6364 Plaintiffs, v. A. P. GREEN INDUSTRIES, INC., et al., Defendants. YVETTE WILLIAMS, Index No. 814387 /2015 Plaintiff, v. BEAZER EAST, INC. f/k/a KOPPER COMPANY, INC. f/k/a THIEM CORPORATION in its own right and as successor in interest to UNIVERSAL REFRACTORIES, INC., et al. Defendant. JOHN M. RANNE and LINDA RANNE, his spouse, Plaintiffs, v. -88 of 12 Index No.: 81045112016 [* 9] AIR & LIQUID SYSTEMS CORPORATION, et al., Defendants SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SAINT LAWRENCE ROBERT E. DUFRANE, Index No. CV-20150145913 Plaintiff, v. A CHEM PRODUCTS, INC. n/k/ a RHONE POULENC AG COMPANY, n/k/a BAYER CROPSCIENCE, INC., et al. Defendants. Defendant Honeywell International Inc., as alleged successor-in-interest to Wilputte Coke Oven Division of Allied Chemical Corporation, improperly named in the above cases as "Honeywell International, Inc. as successor in interest to Wilputte Coke Oven Division of Allied Signal, Inc." ("Honeywell"), having made a motion for an order: (1) pursuant to CPLR 3102, CPLR 3106(b), CPLR4517, 22 NYCRR § 202.15, and EJDAL Case Management Order No. 8 IX(A)(5), Fifth Judicial District CMO VIII(A)(4), Fourth Judicial District CMO Section IX(A)(4) and NYCAL CMO X(A)(7) and (8) directing the taking of the deposition of William Thomas Birmingham ("Mr. Birmingham"), a non-party witness and former Superintendent of the Coke Oven Department of Bethlehem Steel Corporation, upon videotape at a date and time to be agreed to by counsel of record for plaintiffs in the above captioned cases, in order to take and preserve Mr. Birmingham's trial testimony in all pending actions in the event he is unavailable to testify at the trial of these -9 9 of 12 [* 10] cases, and to preserve his trial testimony in the event he is unavailable for the trial of any cases hereinafter commenced that involve similar claims and name Honeywell as a defendant; and (2) for such other and further relief as to the Court seems just and proper, including the costs of this motion in Index Nos.: 801382/2014, I2005/9068, 803640/2015, I-2002-8703, 800630/2014, 802494/2015, I-2002-5645, I-2003-1421, 12002-10570, 80018013, I2012002918, 801300/2016,2009-10502,808645/2014,809287/2015,808643/2014, 800460/2014, I 2006-8628, 12013-1195, 2007-6697, I 1997-002361, 11996/9962, 11197-2155, 11197-6364, and 810451/2016; and Defendant Beazer East, Inc., f/k/ a Beazer East Materials & Services, Inc. f/k/a Koppers Co., Inc. ("Koppers") having made a motion for an order: (1) pursuant to CPLR 3102(c), CPLR 3106(b), CPLR 4517, 22 NYCRR § 202.15, and Eighth Judicial District AL Case Management Order No. 8 IX(A)(5), (C)(2); Fifth Judicial District CMO VIII(A)(4), Fourth Judicial District CMO Section IX(A)(4) and NYCAL CMO X(A)(7), (8) directing the taking of the deposition of William Thomas Birmingham, a non-party witness and former Superintendent of the Coke Oven Department of Bethlehem Steel Corporation, upon videotape at a date and time to be agreed to by counsel of record for plaintiffs in the above captioned cases, in order to take and preserve Mr. Birmingham's trial testimony in all pending actions in the event he is unavailable to testify at the trial of these cases, and to preserve Mr. Birmingham's testimony in the event he is unavailable for the trial of any cases hereinafter commenced that involve similar claims and name Koppers as a defendant; and (2) for such other and further relief as to the Court seems just and proper in Index Nos.: 801382/2014,800630-14, 802494/2015,803024/2014,800180/2013,12012002918, - 10 10 of 12 [* 11] 801300/2016,808645/2014, 809287/2015,808643/2014,800460/14,814073/2015, 12006/8628, 808293/2016, 2007-6697, 814387 /2015, and CV-2015-0145913; Plaintiff in the Rannecase, Index No. 81045112016, only having made a cross motion to compel defendant Wilputte to produce a corporate representative for deposition; and the motions having come on to be heard at a Special Term of this Court held at the Erie County Courthouse, 50 Delaware Avenue on the 21st of November, 2016; NOW, upon reading and filing Honeywell's notice of motion, dated October 26, 2016; the supporting affidavit of James W. Whitcomb, sworn to October 26, 2016 and exhibits thereto, Beazer notice of motion, dated November 8, 2016; the supporting the affidavit ofMeghan M. DiPasquale, sworn to November 8, 2016 and the exhibits thereto; the notice of cross motion, dated November 14, 2016, the affidavit of Dennis P. Harlow, sworn to November 14, 2016 and exhibits thereto, in support of the cross motion and in opposition to Honeywell's and Beazer's motions; the reply affidavit of James W. Whitcomb, sworn to on November 16, 2016 in further support of Honeywell's motion and in opposition to the cross motion; and after hearing Phillips Lytle LLP (James W. Whitcomb, of counsel) in support of Honeywell's motion and in opposition to the cross motion, Ward Greenberg Heller & Reidy (Meghan M. DiPasquale, of counsel) in support of Beazer's motion, and Lipsitz & Ponterio LLC (Dennis P. Harlow and John P. Comerford, of counsel), in opposition to Honeywell's motion and Beazer's motion and in support of the cross motion; upon the transcript of the decision of the Court rendered on November 21, 2016 annexed hereto; and after due deliberation having been held thereon, it is hereby - 11 11 of 12 [* 12] ORDERED that Honeywell's and Beazer's m otions to preserve the testimony William Thomas Birmingham in all pending actions and for potential use in future actions is granted; ORDERED that plaintiffs' cross motion to compel the defendant Wilputte to produce a corporate representative for deposition in the Ranne case is in all respects denied. a_,../' c:2_ J.S .C. c~ HON. DEBORAH A. CHIMES, J.S.C. ENTER: GRANTED Doc #0 1-2998389.3 BY c(-\ \. JAN t 1 IL 6 2017 j tH \, \ , Q .. \ COLLEEN FREIHEIT COURT CLERK - 12 12 of 12

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