Trumbull v Adience, Inc.

Annotate this Case

Download PDF

Trumbull v Adience, Inc. 2018 NY Slip Op 30145(U) January 23, 2018 Supreme Court, New York County Docket Number: 190084/2016 Judge: Lucy Billings 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: NEW YORK COUNTY CLERK 01/26/2018 03:00 PM 1] NYSCEF DOC. NO. 866 INDEX NO. 190084/2016 RECEIVED NYSCEF: 01/26/2018 -SUPREME COURT .OF THE. STATE OF NEW YORK COUNTY OF NEW.YORK: . . PART' 46 -~---------~~-~---~~~:~-~~~--~-----~--x s_: RICHARD. TRUMBULL ,aµd MARGARET · TRUMBULL, IrtdexNo. 190084/2016 :t'laintif f s DECISION AND ORDER - agairist AD.IENCE, · e.t a,l. INC~ ;· f /k/ a· BMI, INC. ! t Defendants ~~-----~-----~-~-------~---------------x LUCY BILLINGS,_ J. S. C.: I .· BACKGROUND Plaintiffs move to reargue and renew, C.P.L.R." . §' 2221(d) and . (e), ·the motion by ·defendant American ·Biltrite, Inc., to dismiss ·the c6mpi·aint :against American Biltrite due· to lack of personal jurisdiction, C.P.L.R. §§ 302(a), 32ll(a}-(8), which the court (Moulton, J") granted in an order dated March 6, reasons explC1,ined below, 2017. For the the court denies plaintiffs' motion. The prior order recites that plaintiff .Richard Trumbull alleged exposure to asbestos from American Biltrite's fioor tiles· from 1959.to.1963 in Missouri. Plaintiffs contertd that the· court maintains specific jurisdiction over American Biltrite because.it . purchased its asbestos for its tiles from Union Carb.ide . . Corporation, whose principal place of business was in New York during the period of :Richard Trumbull.' s exposure to ·.z:.tnerican Biltrit~'s tiles. To show these purc~ases, plain~iffS rely on new ev.idence 'in the form of invoices beginning in 1965, C.P.L.R. trumbull.192 1 2 of 7 [*FILED: NEW YORK COUNTY CLERK 01/26/2018 03:00 PM 2] INDEX NO. 190084/2016 NYSCEF DOC. NO. 866 . ~, RECEIVED NYSCEF: 01/26/2018 I - . . . ' § 2221(e) (2)_;. after the period of Richard Trunlbull's.exposure to American BL!.trite's tiles determined in the prior. order,· and claim .tl;lat it. misapprehended Richar.d Trumpull' s deposj,tion testimony I which sugge'sts that his exposure' ·to American Biltrite's tiles extended to 1967. IT .. C.P.L.R. 2221(d)(2) § TRANSACTION OF BUSINESS IN NEW YORK Assuming Richard·TruTnbull's exposure did extend until 1967, however, American Biltrite' s payments t:.o. Unio:r:i Carb~d.e;·s New York off ice alone do not amount to transaction of business in New York. DirecTV Latin Am., LLC v. Pratbla, 94 A.D.3d 628, 629 (1st Dep't 2012); · Magwitch, L.L.C. v. Pus·ser' s Inc., 84 A.D:3d 529, . 531 {1st Dep't 2011); Framer S.C.A. v. Abaplus Intl. Corp., 76 A.D.3d 89, .96 (1st Dep't 2010). See Bluewaters Communications Holdings, LLC·v. Ecclestone, 122 A.D.3d 426, 427 20.14). (1st Dep't American Biltrite was not itself in New York making or accepting the payments, nor doing so by maintaining an account in New York or by using Union Carbide as American Biltrite's agent ~ver·which American Biltri~e maintained control for American Biltrite's transactions in New York. .v. Gasarch, 149 A.D.3d 485, 487-88 Coast.to·Coast Energy, Inc . (1st Dep't 2017); DirecTV Latin·Am., LLC v. Pratola, 94 A.D.3d at 629. Pictet & See Rushaid v. Cie, 28 N.Y.3d 316, 327-28 (2016); Licci v~. Lebanese Can. Bank, SAL, 20 N .Y; 3d 327, 339. (2012); FIA Leveraged· Fund Ltd .. v. Grant Thornton LLPi 150 A.D.3d 492, 493-94 2017): (1st Dep't Nor does Union Carbide's retention of American Biltrite's paymE:nts forUnion Carbide's use in local commerce constitute trumbull.192 2 3 of 7 [*FILED: NEW YORK COUNTY CLERK 01/26/2018 03:00 PM 3] NYSCEF DOC. NO. 866 INDEX NO. 190084/2016 RECEIVED NYSCEF: 01/26/2018 .American Biltrite' s, ·as opposed to Union Carbide's,· transaction of business.in N~w York .for purposes. of conferring jurisdiction· over American Bilt:r;-ite. CDR Creances S.A.S. v. First Hotels & Resorts Invs., Inc., 140 A.D.3d 558, 562-63 (1st Dep't 2016). Plaintiffs do not even present evidence that American Biltrite paid the ihvoices from Union carbide, but assuming plaintiffs might uncover such evidence through jurisdictional disclosure, American Biltrite .did not purposely avail itself of New York commerce, but merely· followed Union Carbide's direction to.remit payment to its New York post office box. Paterno'v. Laser Spine Inst., 24 N.Y.3d 370, 377 (2014); Ripplewood Advis·ors, LLC v. Callidlis Capital SIA, 1.51 A.D.3d 611, 612 (1st Dep't 2017); Cotia (USA) Ltd. v. Lynn Steel Corp., 134 A.D.3d 483, 484 (1st Dep't 2015); Magwitch, L~L.C. v. Pusser's Inc., 84.A.D.3d,.at.531. See D&R-Global Selections, S.L. v. Bodega Olegario Falcon Pine.iro, 29 N.Y.3d 292, 298 (2017); Rushaid v. Pictet & Cie, 28 N.Y.3d at 326; First Manhattan Energy Corp. v. Meyer, 150 A:D.3d 521, 522 (1st Dep't 2017). In fact, even though Union Carbide's supply of asbestos did not become American Biltrite;s until it reached Am~rican Biltrite's facilities in California or New Jersey, American Biltrite was not even obtaining its supply of asbestos from New York. The Union Carbide invoices that plaintiffs present show that U;nion_Carbide shipped its asbestos from its plant in California to American Biltrite in California or New Jersey.· sum, American Biltrite was transacting all its business from trurnbull.192 3 4 of 7 In [*FILED: NEW YORK COUNTY CLERK 01/26/2018 03:00 PM 4] NYSCEF DOC. NO. 866 INDEX NO. 190084/2016 RECEIVED NYSCEF: 01/26/2018 California or New Jersey regarding its acqtiisition of Unioh Carbide's asbestos. I.II. CONNECTION BETWEEN THE TRANSACTION AND. PLAINTIF.FS' CLAIMS For this reason, moreover, even if American Biltrite transacted business in New York, plaintiffs' evidence does not indicate any connection between that transaction and Richard Trumbull's _exposure to asbestos in Missouri. Squibb Co. v. Superior Court, U.S. (2017); Paterno v. Laser Spine Inst., 24 · v. Smith, 52 N.Y.2d 268, 273 Bristol-Myers , 137 S. Ct. 1773, 1781 N.Y.~d at 379; McGowan (1981); Warck7Meister v. Diana Lowenstein Fine Arts; 7 A.D.3d 351, 352 (1st Dep't 2004). See D&R Global Selections, S.L. v. Bodega Olegario Falcon Pineiro, 29 N.~.3d at 299; Rushaid v. Pictet & asbestos t~aveled Cie~ 28 N.Y.3d at 330. The from one location in California to elsewhere in California or to New Jersey. No evidence shows where the asbestos traveled from there. Plaintiffs nonetheless insist that their new evidence also shows American Biltrite used a single supplier of asbestos, so that when American Biltrite obtained its supply from Union Carbide, American Biltrite used that asbestos for all American Biltrite's products everywhere. This theory falls apart because, even if Richard Trumbull's exposure to American Biltrite's tiles extended until 1967, plaintiffs' evidence shows that Union .Carbide was American Biltrite' s supplier beginning in 1969 and that American Biltrite used at least two other suppliers at the same time: trumbull.192 entities identified as Atlas, until 1975, and Carey, 4 5 of 7 ,-,. [*FILED: NEW YORK COUNTY CLERK 01/26/2018 03:00 .. PM 5] NYSCEF DOC. NO. 866 . . INDEX NO. 190084/2016 RECEIVED NYSCEF: 01/26/2018 .; until 1985. Aff. of Alani Golanski Ex. 9, at 2. Nor does any evidence indicate that Union Carbide supplied the asbestos for Americ'?-n l3iltrite's flooring or tile products, as opposed to its other.unrelated products to which plaintiffs allege no exposure. These attempts to stitch together a connection fall far short of the substantial relationship required. . . Bristol-Myers Squibb Co. , 137 s. Ct. at 1780; Licci v. v. ·.Superior Court, __ U.S. Lebanese Can. Bank, SAL, 20 N.Y.3d at 339-40 . .IV. CONCLUSION ~or this reason and the reasons set forth above, plaintiffs fail .either. to demonstrate personal jurisdiction over American Biltrit~, C~P~L.R. § 302(a) (1), or to make a sufficient start warrarttirtg jurisdictional disclosure, particularly ab this late stage of the litigation, when plaintiffs have pursued no such disclosure until now. C.P.L.R. § 3211(d); Latimore v. Fuller, 127 A.D.3d 521, 522 (1st Dep't 2015); Minella v. Restifo, 124 A;D".3d 486, 487 (1st Dep't 2015). See C.P.L.R. § 2221(e) (2); Rhodes v. City of New York, 88 A.D.3d 614, 615 (1st Dep't 2011); Takeuchi v. Silberman, 41 A.D.3d 336, 337 (1st Dep't :?007). Although plaintiffs hope to uncover a written contract between American Biltrite and Union Carbide for it to supply asbestos to American Biltrite at locations outside New York, plaintiffs do not indicate they expect to uncover its purposeful·activities in New York in relation to the contract: reaching out to contact ·and negotiate with Union Carbide in New York. Paterno v. Laser Spine Inst., 24 N.Y.3d at 377-78; Ripplewood Advisors, LLC v. trumbull.192 5 6 of 7 [*FILED: NEW YORK COUNTY CLERK 01/26/2018 03:00 PM 6] NYSCEF DOC. NO. 866 INDEX NO. 190084/2016 RECEIVED NYSCEF: 01/26/2018 ... Caliidus Capital SIA, 151 A.D.3d at 612; Coast to Coast Energy, Inc. v. Gasarch, 149 A.D.3d at 488; SunLight Gen. Capital LLC v. CJS Irivs. Inc., 114 A.D.3d 521, 522 (1st Dep't 2014). See FIA Leveraged Fund Ltd. v. Grant Thornton LLP, 150 .A.D.3d at 494; Wilson v. Dantas, 128 A.D.3d 176, 182 (1st Dep't 2015), aff'd on other qrounds, 29 N.Y.3d 1051 (2017); C. Mahendra (NY),· LLC v. National Gold & Diamond Ctr., Inc., 125 A.D.3d 454, 356 (1st Dep't 2015); New Media Holding Co. LLC v. Kagalovsky, 463, 464 (1st Dep't .2012). American B~ltrite 97 A.D.3d simply received invoices from Uniori Carbide's billing office directing payments to its New York post office box. Therefore the court denies plaintiffs' motion to reargue and renew the motion by defendant American Biltrite, Inc., to dismiss plaintiffs' claims against it. C.P.L.R. DATED: §§ 2221(d) and (e), 3211(a) (8) January 23, 2018 LUCY BILLINGS, J.S.C. LUCY BiLUt~GS .J.S.C trumbull.192 6 7 of 7

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.