Arazosa v 3M Co.

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Arazosa v 3M Co. 2018 NY Slip Op 30326(U) February 20, 2018 Supreme Court, New York County Docket Number: 190069/2016 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 02/23/2018 11:52 AM 1] INDEX NO. 190069/2016 NYSCEF DOC. NO. 442 \ i:. RECEIVED NYSCEF: 02/23/2018 - ';,.. /' SUPREME COURT OF THE STATE OF.NEW·YORK COUNTY OF NEW YORK: PART 46 - - - - - - - - - - - - .,. . . , . . , - - ·:. ... .: -:. - ·"' ~ " '. .,. ~..,. -: .: . -:-. - -;- -,.::- _.:. - - x JOAN ARAZOSA, as Executor for the Estate of RICHARD ARAZOSk, . ·,· I!).dex No.-. i~od69/2616 .\' ·plaintiff 'against DECISION AND ORDER 3M CO. , et al. , .... ·.-. Defendants . . .. --------------~---~--~....,-~--~---~------x LUCY BILLINGS/ J. S ~ '' : 'C. I . BACKGROUND Plaintiff seeks damages for injuries R.icha:rd. Arazosa . sustained due to exposure to talcum powder products·_ containing asbestos. - . Defendant Imerys SA filed a pre-answer motion'to dismiss the. claims against :tmerys SA based on lac_k of· personal jurisdiction over Imerys S.f\,· maint.aining that it is a· holding ·. . company based in France with- no 'assets or presence in·· th.e Uni.t.ed ~' , States. ·Plaintiff claim~ . ~ that Imerys SA is the . . . ~ucce~sor·to Talco e _Grafite, .an Italian mining.business ,that mined the talc containing asbestos used in cosmetic talcum powder products to. which Richard Arazosa was exp6s.ed. · l?la±ntiff .. th~re~ore sought permission from the Special .·Master to .serv:e disclosure demands to demonstrate jurisdiction over Imerys SA·by connecting.it to Talco e G:r;afite via successor or parent-subsidiary liability. . dn October 24, 201'7, the.· §peciaI Master granted pl.a:intiff' s-~ request" to serve jurisdictional disclosure demands :rega·rding successor liability. arazosa2.192 On November.16, 2017, the Special.Master confirmed to 1 2 of 7 [*FILED: NEW YORK COUNTY CLERK 02/23/2018 11:52 AM 2] ··.,.,. NYSCEF DOC. NO. 442 . INDEX NO. 190069/2016 RECEIVED NYSCEF: 02/23/2018 ) •'. -Imerys SA via ·em'a:ii-that-he:t email.dated _October 24;-2017, --· constituted h~r written re~o~_mendation:., .·. :~ On December 1a·,. 2017 I Imerys SA mov:ed to vac'ate the Special Master's recommendation, claiming.that disclosure is stayed under c. P. L. R_. § 321:4 (b) and that· the demands are _C>ver:bioad and,_, unduly burdensome. _Plaintiff contends_ that Imerys SA'_s motion is untimely under the New. York City Asbestos 'Litigation Case Management Order _ (CMO_>' and that disclosure is not stayed. -On ., . January 29, 2018, after oral argument-oh :tmerysSA's motion, plaintiff submitted revised demanc;ls narrowing her interrogatories and requests for production of documents. · II. - DISCLOSURE IS NOT STAYED UNDER ·C. P. L. R. · § 3 2 iA (b) Imerys·sA contends that its motion to dismiss the.claims . . against ImerysSA triggered a_ stay of disclosure _under C.P.L.R. § 3214(b). The CMO authorizes· the 'special Master to supervise disc-losure and rule on disclosure disput~s -arid 'allows' pa'rties to seek permissiort fr-om t;he Special Ma~ter to serv~ addit:lonal disclosure demands not speCifi9alJY covered by the_ CMQ. III (B) and (C}_, - CMO §§ IX (L) . · CMO '§ VI further provides that the CMO . . . governs where its provisions differ from the C.P-.L.R. The CMO . thus empowered the Special Master to l_ift arty Jtay and order disclosure after- defend<;i-nt Imerys SA filed its motion to dismiss - ,..,.;_ the _ claims against Imerys SA .. III. THE CMO BARS IMERYS SA'S CURRENT MOTION: CMO-§ III(C) required Imerys BA to notify the~Special Master by email of any objection to her recommendation within _three arazosa2.192 2 .' 3 of 7 [*FILED: NEW YORK COUNTY CLERK 02/23/2018 11:52 AM 3] NYSCEF DOC. NO. 442 INDEX NO. 190069/2016 RECEIVED NYSCEF: 02/23/2018 business days after receiving the recommendation~ Master then must reduce ·the ruling to wri.ting. The Special CMO · § IlI ( C) Imerys SA then must present any objection to .the written recommendation to the Coordinating Judge by an order to show cause within seven business days after receiving the ~pec~al Master's written recommendation. lmerys SA filed its order to show cause.objecting to the Special Master's recommendation 55 days after :the recommendation, grossly exceeding the CMO's window period of seven days. Even were the court to consider Imerys SA's seven days as beginning when. the Special Mast~r confirmed to Imerys SA November 16, 2017, that her email of October 24, 2017, was her written recommendation, Imerys SA still took 32 days to appeal by filing its order to show cause. Based on the unexcused untimeliness, the court denies Imerys SA's current motion to vacate the Special Master's recommendation and for a protective order against the disclosure demands her recommendation permits. IV. THE SCOPE OF DISCLOSURE PERMITTED The Special Master's order, however, does not prevent Imerys SA from objecting to plaintiff's jurisdictional disclosure demands. Al though Imerys SA has not yet resp~mded to plaintiff's demands'· it insists in support of its motion. that .they are overbroad,and unduly burdensome. Plaintiff now has attempted to head off Imerys SA's potential objections by 'narrowing her jurisdictional demands through her correspondence January 29, 2018. arazosa2.192 3 4 of 7 [*FILED: NEW YORK COUNTY CLERK 02/23/2018 11:52 AM 4] NYSCEF DOC. NO. 442 INDEX NO. 190069/2016 RECEIVED NYSCEF: 02/23/2018 At this juncture, the applicable standard is simply whether plaintiff's demands may lead to relevant evidence regarding jurisdiction over defendant, evidence that confers or.negates jurisdict:ion, C.P.L.R. ·§ 3101(a); Forman v. Henkin, 2018 WL 828101, at *2 '(Ct. App. Feb. ·1·3,· 2018); SNI/SI.Networks LLC v. DIRECTV, LLC, 132 A.D.3d 616, 617 (1st Dep't 2015); Matter of Steam Pipe Explosion at 41st St. & Lexington Ave., 127 A.D.34 554, 555 {_1st Dep't 2015) I not, as required to.defeat or .defer a motion to dismiss claims· under C.P.L.R. § 3211(d), whether plaintiff has shown she is likely to uncqver evidence that confers jurisdiction: (1st Dep't 2015); Latimo~e Minella~- v. Fuller, 127 A;D.3d 521, 522 Restifo, i24 A:D~3d 486, 487 (1st Dep' t 2O15) . New York discovery rules do not condition a party's receipt of disclosure on·a showing that the items the party seeks actually do exist; rather, the request need only be appropriately tailored and reasonably calcu],ated to yield. relevant information. . In many if not most instances, a party seeking disclosure will not be able to demonstrate that items it has not yet obtained contain material evidence. Forman v. Henkin,, 2018 WL 828101, at *4. Under this ~tandard, · plaintiff has reasonably narrowed her overbroad demands. Nevertheless, the amended demands.still include requests ' - regarding parent-.subsidiary l.iability. Si·nce the Special M.aster' s ruling only permitted plaintiff to serve demands regarding successor liability, plaintiff's interrogatories 19 through 23 and 28 through 32, ?-11 regarding. parent-subsidiary liability, are outside the scop~ of the Sp~cial Master's .ruling. The rationale for this limitation is that parent liability for a arazosa2.192 4. 5 of 7 [*FILED: NEW YORK COUNTY CLERK 02/23/2018 11:52 AM 5] NYSCEF DOC. NO. 442 -. INDEX NO. 190069/2016 RECEIVED NYSCEF: 02/23/2018 subsidiary is much more difficult to establish than successor liability for a predecessor and therefore much less likely to form the basis.for jurisdiction over a parent premised on jurisdiction over a subsidiary than jurisdiction ov_er a successor premised on jurisdiction over a predecessor. A successor corporation may·be liable for its·predecessqr's conduct if the successor assumed that liability, the predecessor consolidated or merged with the successor I the successor was a mere'• Continuation of the predecessor, or the predecessor sold.its assets to the successor to escape.the predecessor's obligations. Barkin Abreu v. Assoc. Real Estate, LLC, 136 A.D .. 3d 600, 601-602 (1st & Dep't 2016); Matter .of New York City Asbestos Litig., 112 A.D.3d '529, 530 (1st Dep't.2013); Tap Holdings, LLC v. Orix Fin. Corp., 109 A.D.3d 167, 175-76 (1st Dep't 2013); ·Fitzgerald v. Fahnestock & Co.,·286 A.D.2d 573, 575 (1st Dep't 2001). ·Richards Shear Co., 59 N.Y.2d 239, 245 (1983) See Schumacher' v. A parent corporation is not liable for its subsidiary's conduct unless the parent corporation has intervened directly in the subsidiary's . r manageme~t i in disregard of its separate corporate form. Billy v. Consolidated Mach. Tool Corp., 51 N. Y. 2d 152,. 163 · (1980) ; Colbalt Partners, L.P. v. GSC Capital Corp., 97 A.D.3d 35, -40. (1st Dep't 2012); Silver Oak Capital ·L.L.C. ~v. UBS AG, 82 A.P.3d 666, 668 (1st Dep't 2011); Sheridan Broadcasting Corp. v. Small, 19 A.D.3d 3 31 , 3 3 2 ( 1st Dep ' t 2 oo5 ) . . arazosa2. 192 5 6 of 7 [*FILED: NEW YORK COUNTY CLERK 02/23/2018 11:52 AM 6] INDEX NO. 190069/2016 NYSCEF DOC. NO. 442 RECEIVED NYSCEF: 02/23/2018 .r V. CONCLUSION For the reasons explained above, the court denies defendant \ Imerys SA's motion to vacate the Special Master's recommendation dated October 24 I 2017 . I permit.ting.. plaintiff to. serve :disclosure . demands regarding successor liability, and_for a protective order against that disclosure. The court confirms that recommendation and permits plaintiff to serve defendant Imerys SA wi~h a~ended jurisdictional disclosure demands conforming with her revisions January 29, 2018, ·and this decision. Defendant Imerys SA shall respond to the amended· jurisdictional disclosure demands within 20 days after service of the demands. C.P.L.~. §§ 3120(2), 3133 (a) . DATE.D: February 20, 2018 LUCY BILLINGS, J.S.C. \ arazosa2.192 6 7 of 7

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