Chapin v Asbestos Corp., Ltd.

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Chapin v Asbestos Corp., Ltd. 2016 NY Slip Op 33131(U) May 25, 2016 Supreme Court, Erie County Docket Number: 802850/2015 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 05/25/2016 04:47 PM NYSCEF DOC. NO. 189 INDEX NO. 802850/2015 RECEIVED NYSCEF: 05/25/2016 SUPREME COURT COURT: : STATE OF NEW YORK EIGHTH JUDICIAL JUDICIAL DISTRICT DISTRICT In Re Re:: EIGHTH EIGHTH JUDICIAL JUDICIAL DISTRICT DISTRICT ASBESTOS LITIGATION In ASBESTOS LITIGATION STATE OF NEW YORK SUPREME COURT COUNTY COUNTY OF ERIE MERLE C. CHAPIN CHAPIN AND IRENE CHAPIN, CHAPIN, his spouse spouse MERLE AND IRENE Plaintiffs Plaintiffs DECISION AND ORDER DECISION AND ORDER vs.. vs Index No. 802850/2015 802850/2015 Index ASBESTOS CORPORATION CORPORATION, , LTD., LTD., et et al., aI., ASBESTOS Defendants Defendants STATE OF NEW YORK SUPREME COURT COUNTY COUNTY OF ERIE MATIKOSH, Executrix o 0 the the Estate Estate of of NANCY A. MATI KOSH, Executrix SAMUEL MATIKOSH, MATIKOSH, JR., JR., Deceased Deceased and and Individually Individually SAMUEL the Surviving Surviving Spouse Spouse of of Samuel Samuel Matikosh, Matikosh, Jr., Jr., as the Plaintiffs Plaintiffs vs. Index No. 809946/2015 809946/2015 Index ASBESTOS CORPORATION, , LTD., et al., aI., ASBESTOS CORPORATION LTD. , et Defendants Defendants Defendant Gulf Gulf & Western, Western, Inc. Inc. (Gulf (Gulf & Western) Western) that it now known known as Defendant ,,alleging alleging that it is now TCI Pacific Pacific Commun Communications, Inc. (TCI), (TCI), moves moves to dismiss dismiss the the second second amended amended complaint complaint in TCI ications, Inc. and the the complaint complaint in Samuel Samuel Matikosh, Matikosh, Jr., on the the ground ground that that this this court court lacks lacks Merle Chapin and personal jurisdiction over it. it. personal jurisdiction over Plaintiffs oppose oppose the the jurisdictional motions and and cross-move cross-move for for leave leave to to serve and file file Plaintiffs jurisdictional motions serve and 1 of 4 [* 2] Chapin/Matikosh Asbestos Corporation, Chapin/Matikosh v. v. Asbestos Corporation, Ltd., Ltd. , et al., Index Nos. 802850/2015 802850/2015 & 809946/2015 Index 809946/2015 a supplemental summons and supplemental summons and amended amended complaint complaint in Matikosh and and to to serve serve and file file a supplemental summons and supplemental summons third amended amended complaint complaint in Chapin. and third In support of of its defendant Gulf In support its motion motion in Chapin, defendant submitted its its Notice Notice of Gulf & & Western Western submitted of Motion dated October 23, 2015, 2015, the the Affirmation Affirmation in Support Motion dated October 23, Mitchell J. Banas Banas Jr., Esq.,, Support of of Mitchell Jr., Esq. with attached with attached exhibit, exhibit, dated dated October October 23, the Affidavit Support of of Marna Marna Salimena, Salimena, 23, 2015, 2015, the Affidavit in Support with attached with attached exhibits, exhibits, sworn sworn to October October 20, 2015; 2015; the the Affidavit Support of of Susan Susan Fancy, Fancy, Affidavit in Support w ith attached attached exhibits, with exhibits, sworn sworn to October October 22, 2015; 2015; the the Reply Reply Affirmation Further Support Affirmation in Further Support of Mit chell J. Banas, of Mitchell Banas, Esq Esq., exhibit, dated 2016 and the the ., with with attached attached exhibit, dated March 28, 28, 2016 Supplemental Affirmation Affirmation of Supplemental Mitchell J. Banas Banas, , Jr., attached exhibit, of Mitchell Jr., Esq., with with attached exhibit, dated dated April April 19, 2016. 2016. In In opposition opposition to the motion in Chapin Chapin, , plaintiffs plaintiffs submitted the Attorney of the motion submitted the Attorney Affidavit Affidavit of Zachary Woods, Esq. , with with attached Zachary James James Woods, attached exhibits, sworn to March 14, 2016. 2016. exhibits, sworn March 14, In support of In support of the the cross-motion their Notice Notice of Crosscross-motion in Chapin, plaintiffs plaintiffs submitted submitted their of CrossMotion, the Affidavit of James Woods, Esq.. , with sworn Motion, the Attorney Attorney Affidavit of Zachary Zachary James Woods, Esq with attached attached exhibits, exhibits, sworn to March 14, 2016 2016 and the Reply Attorney the Reply Attorney Affidavit Affidavit of of Zachary Zachary James James Woods, Woods, Esq., with with attached exhibits, exhibits, sworn sworn to April 2016. attached April 1, 2016. In In support support of of its its motion motion in Matikosh, defendant defendant Gulf Gulf & Western submitted submitted its Notice & Western its Notice of Motion Motion dated dated October October 23, 2015, the the Affirmation Affirmation in Support Mitchell J. Banas Banas Jr. Jr.,, Esq. Esq.,, 23, 2015, Support of of Mitchell with attached exhibit, exhibit, dated with attached 2015, the the Affidavit Affidavit in Support Marna Salimena, dated October October 23, 2015, Support of of Marna Salimena , with attached attached exhibits, exhibits, sworn with October 20, 2015, Support of Fancy, sworn to to October 2015, the the Affidavit Affidavit in Support of Susan Susan Fancy, with attached exhibits, exhibits, sworn sworn to October 22, 2015, 2015, the Reply Affirmation further support support with attached to October the Reply Affirmation in further of Mitchell J. Banas, Banas, Esq., with attached exhibit, exhibit, dated dated March March 28, 2016 and the the of Mitchell with attached 28, 2016 supplemental affirmation affirmation of supplemental Mitchell J. Banas Banas, , Jr., Jr" Esq Esq., with attached attached exhib exhibit,it , dated of Mitchell ., with dated April April 19, 2016. 2016. In opposition the motion motion in Matikosh, plaintiff plaintiff submitted In opposition to to the submitted the the Attorney Attorney Page 2 of 4 Page 2 of 4 [* 3] al. , Chapin/Matikosh v. Asbestos Corporation, Ltd. Ltd.,, et at., Asbestos Corporation, Chapin/Matikosh Index Nos. 802850/2015 & 809946/2015 809946/2015 Nos. 802850/2015 Index 2016. to March Affidavit Woods, Esq. , with attached exhibits, March 14, 14, 2016. sworn to exhibits, sworn with attached James Woods, Zachary James of Zachary Affidavit of of CrossNotice of In support of the the cross-motion plaintiff submitted Crossher Notice submitted her cross- motion in Matikosh, plaintiff support of In attached exhibits, with attached Woods, Esq. , with Motion, the the Attorney of Zachary Zachary James James Woods, exhibits, sworn sworn Affidavit of Attorney Affidavit Motion, with Woods, Esq. to 14, 2016 2016 and the Reply Attorney Esq.,, with James Woods, Zachary James of Zachary Affidavit of Attorney Affidavit the Reply to March 14, attached to April 2016. April 1, 2016. sworn to exhibits, sworn attached exhibits, Background Background Both herein allege caused by exposure their place of place of at their asbestos at to asbestos exposure to injury caused allege injury plaintiffs herein Both plaintiffs employment, Durez Durez Plastics North Tonawanda, complaints herein allege herein allege The complaints York . The Tonawanda, New York. Plastics in North employment, that defendant defendant Hedman Hedman Resources Resources Ltd. (Hedman) (Hedman) was of raw raw asbestos asbestos fibers fibers to supplier of was a supplier that Durez and responsible responsible for for plaintiffs' plaintiffs' injuries. injuries. Durez Allegations issue at issue Allegations at Gulf August 1979, The complaint from March March 1967 1967 through 1979, Gulf through August that, from alleges that, complaint in Matikosh alleges The Western was the parent corporation and majority of defendant defendant Hedman. Hedman. It It stockholder of majority stockholder parent corporation was the and Western and managers alleged that & Western appointed Hedman's Hedman's officers, directors and managers officers, directors Western appointed Gulf & that Gulf further alleged is further echoes the and directed Hedman. . The second complaint in Chapin echoes the amended complaint second amended controlled Hedman directed and controlled complaint comp laint in Matikosh. Motions to dismiss to dismiss Motions In support support of motions, defendant the affidavit of Marna Marna affidavit of submits the defendant submits Western's motions, & Western's Gulf & of Gulf In that TCI Salimen, General Counsel Counsel of of Comcast, Comcast, parent parent of of TCI, TCI, who TCI has states that who states Assistant General Ii men , Assistant Sa succeeded interests of of Gulf Gulf & & Western. Defendant moves, moves, pursuant pursuant to CPLR 30 301, for 1, for to CPLR Western. Defendant the interests to the succeeded to of its principal dismissal because TCI does not have have its principal place place of does not grounds because jurisdictional grounds general jurisdictional dismissal on general and is not business not operate New York not York and assets in New any assets have any or have operate or does not York , does business in New York, long arm dism issal on long incorporated York. It It also 9 302, 302, for for dismissal arm CPLR § pursuant to CPLR moves, pursuant also moves, incorporated in New York. jurisdictional grounds. Defendant Defendant maintains maintains that that Gulf Gulf & & Western, did not own any any shares shares of of not own Western, did j urisdictional grounds. Hedman. It asserts asserts that shares were (Canada)Ltd. . another another Western (Canada)Ltd Gulf & Western held by Gulf were held those shares that those Hedman. It Page Page 3 of 4 3 of 4 [* 4] Ltd. , et al. Chapin/Matikosh v. Asbestos Corporation,n, Ltd., al.,, Asbestos Corporatio tikosh v. Chapin/Ma 5 Index 802850/20155 & 809946/201 809946/2015 Index Nos. 802850/201 Corporate Legal subsidiary of of Gulf & Western, Western, Inc. Inc. The of Susan Susan Fancy, Fancy, Manager, Manager, Corporate Legal affidavit of The affidavit Gulf & subsidiary Golf successor to the successor Canada is the that CBS Canada states that Services of Canada Holdings Holdings Co., to Golf which states Co. , which of CBS Canada Services jurisdiction al motion. of the & Western Western (Canada) (Canada) Ltd Ltd.,., is submitted submitted in support support of the long-arm long-arm jurisdictional motion. & to pursue standing to Among other other arguments arguments, , plaintiffs plaintiffs argue that that TCI TCI lacks lacks standing pursue these these argue Among Viacom Internation motion, , that the motions motions should have been been brought brought by Viacom International al Services Services should have that the motion successor in interest (Viacom). Plaintiffs assert Viacom is the the actual actual successor interest to to Gulf Gulf & & Western Western that Viacom assert that Plaintiffs (Viacom). York. place of business in New New York. of business and has a place the alternative Plaintiffs request request that that the the Court Court deny motions or, or, in the alternative, , allow allow them them the motions deny the Plaintiffs Western. to Gulf successor to to conduct conduct discovery discovery on the the issue issue of of the the true Gulf & Western. true successor to question In reviewing reviewing the material submitted this motion, motion, there there is a preliminary preliminary question submitted on this the material In TCI conducts whether TCI and whether as which entity Gulf & conducts business business in in Western and & Western to Gulf successor to the successor entity is the to which as to New York. Court grants plaintiffs' discovery request. If If necessary, necessary, a a hearing hearing discovery request. grants plaintiffs' this Court Therefore, this York . Therefore, New on the issue will conducted. . will be conducted the issue The parties shall shall have have until until June submit a proposed proposed discovery discovery schedule schedule to to to submit 2016 to June 7, 2016 The parties the Court. Court. the the discovery The motion and and crosscross- motion motion are are held held in abeyance abeyance until until the discovery ordered ordered The motion herein is completed. completed. herein SO ORDERED ORDERED:: /~~ tlA /1.A~r'?/~ DATED:: Buffalo, Buffalo, New New York York DATED May 25, 25,2016 2016 May ( HON. 'HoN. GRANTED NTED GRA MA 2 6201 5 tOI MAY~ BY BY RRY~.11'IK ~~ i\lfARY rn-c ottl\T etEKK ttgUt\TeLE Page 4 of 4 4 of 4 DEBORAH A. A. CHIMES CHIMES DEBORAH Justice of Supreme Court Court the Supreme of the Justice

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