Godfrey v A.O. Smith Water Prods.

[*1] Godfrey v A.O. Smith Water Prods. 2018 NY Slip Op 51070(U) Decided on April 23, 2018 Supreme Court, New York County Billings, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 23, 2018
Supreme Court, New York County

Shirley Jo Godfrey, Individually and as Executrix of the Estate of Robert C. Godfrey, Deceased, Plaintiff,

against

A.O. Smith Water Products, et al., Defendants.



190280/2015



For Plaintiff:

Seth A. Dymond Esq.

Belluck & Fox, LLP

546 5th Avenue, New York, NY 10036

For Defendant CertainTeed Corporation:

Mark I. Friesz Esq.

Darger, Errante, Yavitz & Blau, LLP

116 East 27th Street, New York, NY 10016
Lucy Billings, J.

I. BACKGROUND

Plaintiff sues defendant CertainTeed Corporation to recover damages for the decedent Robert Godfrey's exposure to asbestos between 1973 and 1978 in Massachusetts from cement siding shingles that CertainTeed Corporation purchased from nonparty National Gypsum Company, rebranded, and resold as CertainTeed's product and that Godfrey's employer used. Plaintiff premises jurisdiction on an ongoing business relationship between CertainTeed Corporation and National Gypsum, based in New York, and on a conspiracy by defendants, including CertainTeed Corporation, in New York to conceal the hazards of asbestos. CertainTeed Corporation moves to dismiss the claims against it based on the court's lack of personal jurisdiction over it. C.P.L.R. § 3211(a)(8).

Michael Starczewski, CertainTeed Corporation's associate general counsel, attests in an affidavit dated September 22, 2017, that CertainTeed Corporation is a Delaware corporation with its principal place of business in Pennsylvania. CertainTeed Corporation employs 143 employees and operates one manufacturing facility in New York, for the manufacture of cement drainage pipes and pipe fittings, but ceased manufacturing asbestos cement siding shingles in the 1920s. During the 1950s to the mid-1970s, CertainTeed Corporation resold asbestos cement siding shingles it purchased from National Gypsum.

II. JURISDICTION UNDER C.P.L.R. §§ 301 AND 302(a)(1)

Starczewski's affidavit fails to contest personal jurisdiction. First, since Starczewski does not attest to the duration of his employment, he fails to establish his personal knowledge, Oldham v. City of New York, 155 AD3d 477, 477 (1st Dep't 2017); DeCanio v. Principal Bldg. Servs. Inc., 115 AD3d 579, 580 (1st Dep't 2013); Rodriguez v. Board of Educ. of the City of NY, 107 AD3d 651, 652 (1st Dep't 2013); Gogos v. Modell's Sporting Goods, Inc., 87 AD3d 248, 253-54 (1st Dep't 2011), that CertainTeed Corporation's principal place of business was outside New York when Robert Godfrey commenced this action September 1, 2015. C.P.L.R. § 301. See Uzan v. Telsim Mobil Telekomunikasyon Hizmetleri A.S., 51 AD3d 476, 477 (1st Dep't 2008); Lancaster v. Colonial Motor Frgt. Line, 177 AD2d 152, 156 (1st Dep't 1992). Second, Starczewski admits that CertainTeed Corporation currently retains 143 employees in New York and nowhere indicates that CertainTeed Corporation did not retain any employees here during or leading up to 1973-78. Neither does he indicate where Certainteed Corporation employees were when they admittedly purchased the cement siding shingles for their employer from National Gypsum in New York, which CertainTeed Corporation admits was the sole source of that product that CertainTeed Corporation sold during that business relationship from 1950 to 1975. Nor does CertainTeed Corporation address where it was when it admittedly resold the siding used by Godfrey's employer. Absent evidence where CertainTeed Corporation's buyers and sellers were when they purchased, marketed, or resold its asbestos siding that then was purchased and used by Godfrey's employer, CertainTeed Corporation fails to contest such a transaction of business in New York that would confer jurisdiction. See C.P.L.R. § 302(a)(1); D & R Global Selections, S.L. v. Bodega Olegario Falcon Pineiro, 29 NY3d 292, 298-99 (2017); Rushaid v. Pictet & Cie, 28 NY3d 316, 328 (2016); Matter of Stettiner, 148 AD3d 184, 192 (1st Dep't 2017); C. Mahendra (NY), LLC v. National Gold & Diamond Ctr., Inc., 125 AD3d 454, 457-58 (1st Dep't 2015). CertainTeed Corporation's failure to present such evidence when it obviously would be in the corporation's possession raises the inference that it would not support dismissal.

Similarly, CertainTeed Corporation shows only that it maintained no asbestos siding manufacturing plants in New York during the 1970s, while admitting at oral argument that it maintained offices for the transaction of business in New York. Insofar as CertainTeed Corporation may have marketed its asbestos siding through those offices, it fails to contest a connection between those offices' transactions and the injury to the decedent. It presents no evidence that the siding that exposed the decedent to asbestos in Massachusetts was purchased by his employer outside New York. Since CertainTeed Corporation admits that its purchases of asbestos siding from National Gypsum were the sole source of cement siding shingles that it sold during their business relationship, all its asbestos siding to which Robert Godfrey was exposed derived from these transactions of business. This connection between the these transactions and the claims of Godfrey's exposure supports jurisdiction under C.P.L.R. § 302(a)(1).

As part of CertainTeed Corporation's business relationship with National Gypsum, CertainTeed Corporation does present an agreement with National Gypsum dated March 7, 1969, which the parties renewed in correspondence dated February 18, 1972, to establish that National Gypsum did not ship its asbestos siding from New York. These agreements, on which plaintiff also relies, are admissible as ancient documents because they are more than 30 years old and not claimed to be fraudulent or invalid. Essig v. 5670 58 St. Holding Corp., 50 AD3d 948, 949 (2d Dep't 2008); Szalkowski v. Asbestospray Corp., 259 AD2d 867, 868 (3d Dep't 1999). While the agreements indicate, as Starczewski attests, that National Gypsum shipped its asbestos siding to CertainTeed Corporation from National Gypsum's plants in New Jersey, Missouri, and Louisiana, that fact does not establish that CertainTeed Corporation's purchases or resales occurred outside New York. See D & R Global Selections, S.L. v. Bodega Olegario Falcon Pineiro, 29 NY3d at 300; FIA Leveraged Fund Ltd. v. Grant Thornton LLP, 150 AD3d 492, 493-94 (1st Dep't 2017); Matter of Stettiner, 148 AD3d at 192; C. Mahendra (NY), LLC v. National Gold & Diamond Ctr., Inc., 125 AD3d at 457. Neither does CertainTeed Corporation substantiate its claims that it executed the contracts sent by National Gypsum in Pennsylvania rather than New York. FIA Leveraged Fund Ltd. v. Grant Thornton LLP, 150 AD3d at 493-94; Wilson v. Dantas, 128 AD3d [*2]176, 182-83 (1st Dep't 2015), aff'd on other grounds, 29 NY3d 1051 (2017); C. Mahendra (NY), LLC v. National Gold & Diamond Ctr., Inc., 125 AD3d at 456; New Media Holding Co. LLC v. Kagalovsky, 97 AD3d 463, 464 (1st Dep't 2012). CertainTeed Corporation's execution of the contracts in Pennsylvania is not readily apparent from the contracts' face. Starczewski is silent and in any event lacks personal knowledge as to their execution.

CertainTeed Corporation presents additional evidence to support dismissal through Starczewski's supplemental affidavit dated January 24, 2018. Since the evidence does not reply to plaintiff's opposition to CertainTeed's motion, the court may not consider this evidence. Eujoy Realty Corp. v. Van Wagner Communications, LLC, 22 NY3d 413, 422 (2013); Amtrust-NP SFR Venture, LLC v. Vazquez, 140 AD3d 541, 541-42 (1st Dep't 2016); Scafe v. Schindler El. Corp., 111 AD3d 556, 556 (1st Dep't 2013); Keneally v. 400 Fifth Realty LLC, 110 AD3d 624, 624 (1st Dep't 2013). See Young v. New York City Health & Hosps. Corp., 147 AD3d 509, 510 (1st Dep't 2017); 71 Clinton St. Apts. LLC v. 71 Clinton Inc., 114 AD3d 583, 584 (1st Dep't 2014). Even were the court to consider the annual reports CertainTeed Corporation offers, they demonstrate only that CertainTeed Corporation maintained no asbestos siding plants in New York in 1971, 1972, and 1975. Annual reports from 1976 through 1979 demonstrate that it did not produce, distribute, or sell asbestos siding in New York during that period. The evidence does not indicate the absence of plants before 1971 or during 1973-74, nor, more importantly, the absence of purchasing, marketing, or sales offices in New York before 1976.

III. JURISDICTION BASED ON CERTAINTEED CORPORATION'S PARTICIPATION IN A CONSPIRACY

Regarding plaintiff's alternate grounds for jurisdiction based on CertainTeed Corporation's participation in a conspiracy to conceal the hazards of asbestos, C.P.L.R. § 302(a)(2), plaintiff's sixth claim alleges such a conspiracy by all defendants, not only defendant Metropolitan Life Insurance Company as CertainTeed Corporation maintains. Such concealment amounts to a failure to warn foreseeable users of the hazards of CertainTeed Corporation's product, for which a party that rebrands a product and places it on the market as that party's product may be liable. Passante v. Agway Consumer Prods., Inc., 12 NY3d 372, 382 (2009); Anaya v. Town Sports Intl., Inc., 44 AD2d 485, 487 (1st Dep't 2007). See Matter of New York City Asbestos Litig., 27 NY3d 765, 787-88 (2016); Liriano v. Hobart Corporation, 92 NY2d 232, 237 (1998); Hartnett v. Chanel, Inc., 97 AD3d 416, 419 (1st Dep't 2012). While conspiracy is not an independent civil claim, Carlson v. American Intl. Group, Inc., 30 NY3d 288, 310 (2017); Schleifer v. Yellen, ___ AD3d ___, 2018 WL 890891, at *1 (1st Dep't Feb. 15, 2018); Loren v. Church St. Apt. Corp., 148 AD3d 516, 517 (1st Dep't 2017); Johnson v. Law Off. of Kenneth B. Schwartz, 145 AD3d 608, 611 (1st Dep't 2016), a conspiracy to commit a tort may provide a basis for jurisdiction. C.P.L.R. § 302(a)(2); FIA Leveraged Fund Ltd. v. Grant Thornton LLP, 150 AD3d at 495; Lawati v. Montague Morgan Slade Ltd., 102 AD3d 427, 428 (1st Dep't 2013).

The complaint does not allege, however, that the conduct by CertainTeed Corporation or any other defendants supporting this specific claim, the conspiracy to commit a tort, occurred in New York. The complaint alleges only that "Defendants . . . have committed one or more tortious acts within this state . . . ." Aff. of Mark I. Friesz Ex. 1 ¶ 4. Plaintiff now presents documentary evidence to show that the conspiracy to conceal the hazards of asbestos in which CertainTeed Corporation participated occurred in New York. First, CertainTeed Corporation attended a Conference on Biological Effects of Asbestos in October 1964 and a meeting of the Health & Safety Council of the Asbestos Cement Products Association in February 1969, both in New York, where the attendees discussed the hazards of asbestos and safety practices for handling asbestos materials. Related to this discussion is a position paper dated December 23, 1970, issued by manufacturers of products containing asbestos, including CertainTeed Corporation, based on their collective input, to be delivered to the New York City Council as it was considering whether asbestos posed a health hazard. The document maintains that asbestos released from products containing asbestos during construction and demolition had not been demonstrated to be hazardous, without disclosing the hazards of asbestos and safety practices for [*3]handling asbestos materials the manufacturers had discussed at their prior meetings in New York. While the remainder of plaintiff's documents also may qualify as ancient documents, they do not identify their authors or recipients, nor does any witness supply this authentication.

Plaintiff's admissible documentary evidence is tenuous support for a conspiracy, but does show that the concerted actions occurred in New York. The complaint's claims that defendants, including CertainTeed Corporation, conspired in New York to conceal the hazards of asbestos, which do encompass all the elements of a conspiracy, albeit not necessarily in New York, remain unrebutted. These unrebutted claims, supplemented by the admissible documents, combined with CertainTeed Corporation's failure to show that such concerted actions occurred anywhere other than in New York or to contest its implementation of the concerted concealment through its rebranding and sales of asbestos products in New York, supports jurisdiction based on a conspiracy. FIA Leveraged Fund Ltd. v. Grant Thornton LLP, 150 AD3d at 495; Lawati v. Montague Morgan Slade Ltd., 102 AD3d at 428. See Wang v. LSUC, 137 AD3d 520, 521 (1st Dep't 2016); Bluewaters Communications Holdings, LLC v. Ecclestone, 122 AD3d 426, 427 (1st Dep't 2014).

Whether or not CertainTeed Corporation participated in any concerted concealment, if CertainTeed Corporation simply rebranded for resale or sold its asbestos products in New York without warning foreseeable users of its products' hazards, this conduct supports jurisdiction under C.P.L.R. § 302(a)(2). Whether jurisdiction is based on a conspiracy or independent tortious conduct, again, since all CertainTeed Corporation's asbestos siding shingles to which Robert Godfrey was exposed were the products containing the hazards that CertainTeed Corporation concealed, plaintiff shows a causal connection between the conspiracy and tortious conduct and the exposure claimed.

IV. CONCLUSION

On all the above grounds, the court denies defendant CertainTeed Corporation's motion to dismiss the claims against CertainTeed Corporation due to the lack of personal jurisdiction over this defendant. C.P.L.R. §§ 301, 302(a)(1) and (2), 3211(a)(8).

DATED: April 23, 2018

LUCY BILLINGS, J.S.C.