Gallen v Aerco Intl., Inc.

Annotate this Case

Download PDF

Gallen v Aerco Intl., Inc. 2017 NY Slip Op 32155(U) October 12, 2017 Supreme Court, New York County Docket Number: 190343/15 Judge: Manuel J. Mendez 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 10/13/2017 11:56 AM 1] INDEX NO. 190343/2015 NYSCEF DOC. NO. 587 RECEIVED NYSCEF: 10/13/2017 SUPREME COURT OF THE STATE OF NEW YORK PRESENT: MANUEL J. MENDEZ NEW YORK COUNTY PART13 Justice ~~- IN RE: NEW YORK CITY ASBESTOS LITIGATION THOMAS GALLEN and MAURA GALLEN ' INDEX NO. Plaintiff MOTION DATE - against - 190343/15 10-05-2017 016 MOTION SEQ. NO. AERCO INTERNATIONAL, INC., et al., MOTION CAL. NO. Defendants. The following pa~e_rs, numbered 1 to Jl were read on this motion by settled party JCB INC. to quash a subpoena Ad Test1f1candum, and for a protective order: PAPERS NUMBERED Notice of Motion/ Order to Show Cause -Affidavits Answering Affidavits - z Exhibits Exhibits... 1- 4 5 _a ~~~~~~~~~~~~~~--11---~~~~~- Rep Iyin g A ff id av Its~~~~~~~~~~~~~~~~~~~~~~~~~- D Yes tn Cross-Motion: 0 Upon a reading of the foregoing cited papers it is ordered that settled party CL YOE UNION, INC.'s motion to quash a subpoena Ad Testificandum served upon it by defendant The Fairbanks Company, and for a protective order precluding The Fairbanks Company, from taking any live trial testimony in this action from any CLYOE UNION, INC. representative, is granted and the subpoena is quashed. The Fairbanks Company, may make use of the non-party's interrogatories and deposition at trial, in accordance with the CMO dated June 20, 2017. w tn () <( _w I- 0:: tn (!) :::::>z ..., - 0 3: I- 0 w ...J ...J c 0:: 0 0:: LL. WW LL. :I: l- w o:: 0:: >O ...J LL. ...J ::> LL. l- o w X No CLYOE UNION, INC. settled the claims asserted against it with plaintiff. Defendant The Fairbanks Company, served on settled party CLYOE UNION, INC. a subpoena Ad Testificandum dated September 20, 2017 requiring the appearance of "the individual designated by CLYOE UNION, INC. as its corporate representative/person most knowledgeable for the trial in this matter.... to give testimony in this action as a witness at trial with respect to all matters relevant to this action, including the following specific subject areas: "1- The Company's historical knowledge of the hazards or potential hazards of asbestos, and specifically when and how the company knew that asbestos could cause asbestosis, lung cancer and/or mesothelioma; 0. tn w 2- The corporate history of the Company; 0:: tn w tn <( z () 0 t:= 0 ::!: 3- Knowledge of the Company's use, sale and/or distribution of any asbestoscontaining equipment and/or products manufactured, supplied, distributed, re-branded and/or sold by the company or any of its predecessor entities from 1958 through 1985 (Mr. Carilli's alleged period of exposure to asbestos); 4- Any warnings/precautionary statements concerning the Company's asbestoscontaining equipment or products identified in the above captioned matter regarding potential asbestos hazard associated with its products; 5- Company's membership in and/or affiliation with any of the following trade associations or other entities that disseminated information regarding asbestos or occupational health hazards generally, including but not limited to: National Safety 1 1 of 5 [*FILED: NEW YORK COUNTY CLERK 10/13/2017 11:56 AM 2] NYSCEF DOC. NO. 587 INDEX NO. 190343/2015 RECEIVED NYSCEF: 10/13/2017 Council,_lndustrial_H~giene Foundation, American Ceramics Society, the Asbestos lnfor'!1at1on A~soc1at1on of N~rth America, The American Petroleum Institute, the American Soc1.ety of '!"echanical Engineers, the Illinois Manufacturer's Association, Asbestos Textile Institute and/or the Asbestos Information Association. 6- Knowle~~e of the ~ompany':; catalogs, order forms, pamphlets, brochures or ~my ~ther ~dvert1sing m_aterial regarding_ the Company's products or equipment 1dent1fied in above captioned matter during the relevant time period of plaintiff's alleged exposure. 7- All other relevant matters." (Mot. Exh. A) Settled party CLYDE UNION, INC. moves pursuant to CPLR §§3101 and 2304 to quash the sub_Poena, and ~ursu~nt to CPLR §3103 for a protective order. JCB INC. a~gues that this subpoena 1s an improper attempt by The Fairbanks Company to obtain discovery ~nd sh~ul~ not b~ all.owed at this late stage. It also argues that the subpoena 1s lacking in spec1fic1ty, over broad, and burdensome, and will create an unreasonable expense and disadvantage to CLYOE UNION, INC. as it is being served on the eve of trial. Under these circumstances, it argues, a motion to quash the trial subpoena and/or a protective order precluding The Fairbanks Company from using a CL YOE UNION, INC. reeres.entative is warra!'lted. It also argues that it is a settling defendant and that forcing 1t to produce a witness would be contrary to public policy fostering and encouraging settlement. Pursuant to CPLR § 3101(a)(4) "There shall be full disclosure of all matters material and necessary in the prosecution or defense of an action, regardless of the burden of proof by .... Any other person, upon notice stating the circumstances or reasons such disclosure is sought or required." Pursuant to CPLR §1601 a party defendant is entitled to place before the jury the conduct of a person not a party to the action, except one over which the plaintiff was not able to obtain jurisdiction, to determine the equitable share of culpability of the person not a party (see CPLR § 1601; McKinney's Consolidated Laws of N.Y. Section 1601 :2). According to CPLR § 1601, The Fairbanks Company as a party defendant, is entitled to place before the jury the conduct of a settled party, such as CLYOE UNION, INC. to determine its equitable share of culpability. "The power to issue a Subpoena Ad Testificandum is absolute and unlimited" (Ocean-Clear, Inc., v. Continental Casualty Company, 94 A.D.2d 717, 462 N.Y.S.2d 251 [2"d. Dept. 1983]). Therefore The Fairbanks Company had a right to issue a subpoena Ad Testificandum to non-party CLYOE UNION, INC. "A motion to quash or vacate is the exclusive vehicle to challenge the validity of a subpoena or the jurisdiction of its issuer" (Ayubo v. Eastman Kodak Company, 158 A.D.2d 641, 551 N.Y.S.2d 944 [2"d. Dept. 1990]). " The person ch~llenging the subpoena bears the burden of . demonstrating a lack of authority, a lack of relevancy or a lack of a factual basis for the issuance of the subpoena" (Hogan v. Cuomo, 67 A.D.3d 1144, 888 N.Y.S.2d 665 [3rd. Dept. 2009]). "An application to quash a subpoena should be granted only where the futility of the process to uncover anything legitimate is inevitable or obvious, or where the information sought is utterly irrelevant to any proper inquiry" (Anheuser-Busch, Inc., v. Abrams, 71 N.Y.2d 327, 520 N.E.2d 535, 525 N.Y.S.2d 816 [1988); Velez v. Hunts Point Multi-serv. Ctr., Inc., 29 A.D.3d 104, 811 N.Y.S.2d 5 [1st. Dept. 2006); Empire Wine & Spirits LLC v. Colon 145 A.D.3d 1157, 43 N.Y.S.3d 542 [3rd. Dept. 2016); Hogan v. Cuomo, Supra; Ayubo v. Eastman Kodak Company, Supra]). A trial subpoena cannot be over broad and a party cannot use a trial subpoena to obtain discovery that it failed to obtain during pre-trial disclosure ( Bour v. Bleecker LLC, 104 A.D.3d 454, 961 N.Y.S.2d 98 [1st. Dept. 2013)). Quashing a trial subpoena served 2 2 of 5 [*FILED: NEW YORK COUNTY CLERK 10/13/2017 11:56 AM 3] NYSCEF DOC. NO. 587 INDEX NO. 190343/2015 RECEIVED NYSCEF: 10/13/2017 on a non-party !hat is over broad , and improperly used to secure discovery that should h ave been obtained during pre-trial disclosure. Absent the sub~oena being over broad or served to obtain discovery that should _have be.en obtained during pre-trial disclosure, if the subpoena complies with the notice requm~ments, and _the disclosure sought is relevant to the prosecution or defense of an ~ction, the motion to quash the subpoena should be denied; unless the party challenging t~e subpoena esta~l~shes that the information sought is utterly !rr~lev~nt to the ac~1on, or that the fut1hty of the process to uncover anything legitimate is inevitable or obvious (see Kapon v. Koch, 23 N.Y.3d 32, 11 N.E.3d 709 988 N.Y s 2d 559 [2014]). ' . . The Fairbanks Company is not requesting the production of documents it is re<:luesting a witness. to provide testimony at trial. The subpoena served by The Fairbanks Company 1s not over broad and has not been served to obtain discovery that should have been obtained during pre-trial disclosure. The subpoena on its face provides notice of the specific items being requested, which are relevant to the establishing of the equitable shares of liability in this action. CL YOE UNION, INC., the party challenging the subpoena, has not established on this record that the information sought is utterly irrelevant to the action, or that the futility of the process to uncover anything legitimate is inevitable or obvious. CLYOE UNION, INC.'s reliance on the Evans v. 3M case is misplaced. The facts herein are starkly different from the facts in Evans. In Evans the subpoena was a Duces Tecum and Ad Testificandum requesting production of voluminous records which should have been obtained during pre-trial disclosure, was over broad because it requested information beyond the claimed exposure periods, was served close to the end of the trial when the court and the attorneys were contemplating a jury charge conference, and was served on short notice making it difficult for the witness to be available to testify in light of personal commitments and company obligations. In this case, the subpoena is solely Ad Testificandum, it seeks testimony pertaining to the plaintiff's specific exposure period, is not over broad or unduly burdensome, and does not seek documentation that should have been obtained during pre-trial disclosure. However CLYOE UNION, INC. argues that as a settling party, forcing it to produce a witness, is contrary to public policy fostering and encouraging settlement. This court is of the opinion that, as a settling party, forcing CLYOE UNION, INC. to produce a witness at the trial of this matter is contrary to the policy of fostering and encouraging settlements, and to the NEW YORK CITY ASBESTOS LITIGATION (NYCAL) CASE MANAGEMENT ORDER (CMO) dated June 20, 2017, slated to take effect on July 20, 2017 and recently implemented on September 19, 2017 by the lifting of the Appellate Division First Department stay. "The CMO governs various pre-trial and trial procedures in NYCAL. ... and differs from the CPLR in numerous ways in an attempt to address issues that permeate asbestos litigation .... Such as allowing the limited use of hearsay for article 16 purposes."( see decision accompanying CMO dated June 20, 2017, Moulton, J.) Justice Moulton stated in his decision accompanying the June 20, 2017 CMO with respect to the limited use of hearsay for article 16 purposes ... "Given the longevity of asbestos litigation, many corporate representatives with personal knowledge about a company's asbestos-related products, and the warnings, if any, given to the users of such products, have either retired or died. Accordingly, defendants sought to relax hearsay rules to admit some types of informatio_n that might oth~rwise. be barred by strict adherence to New York State's rules of evidence. In our d1scuss1ons defendants argued that they should be allowe~ to use both i_nterrogatory answer:; and depositi~ns of non-parties to prove that non-parties should be included on the verdict sheet for article 3 3 of 5 [*FILED: NEW YORK COUNTY CLERK 10/13/2017 11:56 AM 4] NYSCEF DOC. NO. 587 INDEX NO. 190343/2015 RECEIVED NYSCEF: 10/13/2017 ~ 6 purposes .... Defendants reason these interrogatory answers are sufficiently reliable to e used by other defendants, at lea~t for the limited purpose of demonstrating that a non-party sold a product that contained or used asbestos, and failed to warn about the d~ngers of asbestos .... The court agrees that this limited article 16 relief is warranted given the age of as~~stos litigation and _the difficulty defendants face in proving that oth_er _non-~arty ent1t1es should be considered by the jury as potential causes of a plaintiff~ d1se~se. lnterrogat~ry ans~ers _concerning product identification are reliable in that 1t 1s agains.t the answering entity's interest to admit that its product contained asb~st~s, or requ1r~d that ~sbestos be used to further the product's purpose. An adm1ss1on concerning a f~1lure to warn is similarly against interest. Defendants in NYCAL generally are requ1re_d to answer the standard form interrogatories contemplated by the CMO ~>nly once. The, interrogatory answers are then used in all NYCAL cases .... The [~MO] signed on today s date allows for the use of interrogatory answers as desc:r1b_ed a_bove ..... Of ~ourse, a settled defendant's deposition testimony can be adm1ss1ble in ce~in c1rcu_mstances for Article 16 purposes under CPLR 3117(2). However that section applies only to settled defendants, and contains other requirements .... " (see decision accompanying CMO dated June 20, 2017 pp 22-23). The CMO, in its section XIII Use at trial of Nonparty Interrogatories and Depositions, states: "(A) Use of Nonparty Interrogatories. Answers by non-parties of NYCAL standard sets of interrogatories may be used at trial to prove: 1) that a product or products of the nonparty contained asbestos, or that asbestos was used in conjunction with the nonparties' product or products, and/or 2) any failure to warn by the nonparty concerning an asbestos-containing product and/or the use of asbestos in association with a product.. .... for purposes of this section a non-party shall include a settled party. (B) Use of Non-party Depositions. Nonparty depositions may be used where allowed by the CPLR. .. " Justice Moulton's decision accompanying the CMO, and the CMO, clearly allow the use by defendants in a NYCAL action of non-party and settled party interrogatories, and deposition of settling defendants ( under certain circumstances). This use is allowed due to the age of asbestos litigation and the difficulty defendants face in proving that other, non-party and settling, entities should be considered by the jury as potential causes of a plaintiff's disease. The use of non-party and settling defendants' interrogatories also serves to streamline the trial process, by allowing the defendants to prove the culpability of these entities without the need of producing a witness for this purpose. In essence following the CMO obviates the need to subpoena witnesses from non-parties and settling defendants in order to establish their equitable share of culpability. CPLR §3117[a](2] was amended in 1996 to per'!1it the use at t~ial of depositi~~ testimony of an agent or employee of party to the action "as of the time the depos1t1on was taken (and not necessarily at the time of trial as well) .... Post-deposition settlement of the deponent (or of the deponent's employer) would no longer bar admission of the deposition." The revision was perceived as a _means .o~ alleviating any.~otential discouragement of settlements, because "By its prov1s1ons, the depos1t1on would become admissible pursuant to CPLR §3117[a][2] upon application of a party who was adverse to the deponent (or adverse to the party for whom deponent appeared) as of the date of the deposition"(see New York Bill Jacket, 1996, Ch. 117 New York Bill Jacket A.O. 7545-A pg. 10). The Trial Court in its discretion determines the admissibility of deposition testimony used as evidence. Deposition testimony used pursuant to CPLR §3117[a](2], must be admissible under the rules of evidence (Novas v. Zuckerman, 93 A.O. 3d 585, 941 N.Y.S. 2d 84 [1st Dept., 2012] and Rivera v. New York City Transit Authority 54 A.O. 3d 545, 863 N.Y.S. 2d 201 [1st Dept., 2008]). In this case the deposition testimony of a witness on behalf of JCB INC. taken before settlement may be admissible evidence and may be used for the limited purpose 4 4 of 5 [*FILED: NEW YORK COUNTY CLERK 10/13/2017 11:56 AM 5] NYSCEF DOC. NO. 587 INDEX NO. 190343/2015 RECEIVED NYSCEF: 10/13/2017 of determining liability under CPLR § 1601. To the extent the testimony admits to the knowl~dge of the hazards of asbestos, the manufacture of asbestos related products and fall.!Jre to ~arn, that is admissions against interest of the party deponent, it is ' adm1s~1ble evidence of the facts against that party (Rivera v. New York City Transit Authority 54 A.O. 3d 545, suera and GJF Const., Inc. v. Sirius America Ins. Co., 89 A.O. 3d 622, 934 N.Y.S. 2d 697 [1 t Dept., 2011], facts admitted in the deposition are informal judicial admissions (Richter, J., concurring, at pgs. 626-627). The use of interrogatories is governed by the languaSile of CPLR §3131, and the answers "may be used to the same extent as the depositions of a party" (McKinney's Consolidated Laws of New York Annotated CPLR §3131). The Court agrees that limited article 16 relief is warranted given the age of asbestos litigation and the difficulty defendants face in proving that other non-party entities should be considered by the jury as potential causes of a plaintiff's disease. Interrogatory answers concerning product identification are also reliable in that it is against the answering entity's interest to admit that its product contained asbestos, or required that asbestos be used to further the product's purpose. An admission concerning a failure to warn is similarly against interest. Defendants in NYCAL generally are required to answer the standard form interrogatories only once. It is no secret that these NYCAL cases have a large number of defendants, most of which settle prior to or even during the trial. It takes weeks to select a jury and months to complete a trial of one of these cases; this is without the need for the production by a non-party or settling defendant of a witness at trial. These already complicated, lengthy trials would become even lengthier. The mechanism for the defendant to meet its Article 16 burden through interrogatories, and at times through depositions, without the need of producing witnesses will streamline the trial, and saves time by reducing the number of witnesses called at trial, while affording the defendant the opportunity to meet its CPLR Article 16 burden. In sum it promotes judicial economy and efficiency, and provides a settling defendant finality. Accordingly, it is ORDERED that the motion by CL YOE UNION, INC., to quash a subpoena Ad Testificandum served upon it by defendant The Fairbanks Company, and for a protective order, is granted, and it is further , ORDERED that the subpoena is quashed, and it is further, ORDERED that The Fairbanks Company may make use of the settling party's CLYOE UNION, INC. interrogatories and deposition at trial in accordance with the CMO dated June 20, 2017, and it is further, ORDERED that the remainder of the relief sought in this motion is denied. ENTER: Dated: October 12, 2017 -M~A~~=-+-=~L,---:-J.~M~E=N~oT-•E=z=--~fMAi~NUELJ.ME~U J.S.C. Check one: FINAL DISPOSITION X NON-FINAL DISPOSITION Check if appropriate: D DO NOT POST D REFERENCE 5 5 of 5 J.S.

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.