Esposito v ABB, Inc.

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Esposito v ABB, Inc. 2021 NY Slip Op 32740(U) December 14, 2021 Supreme Court New York County Docket Number: Index No. 190163/2019 Judge: Adam Silvera 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. [* 1] INDEX NO. 190163/2019 I: NYSCEF DOC. NO. 358 II !~RESENT: RECEIVED NYSCEF: 12/21/2021 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY HON. ADAM SILVERA PART 13 Justice i j. I- '-------------------------- -------------------------- -------·· -------------X OF THE ESTATE IiLORETTA ESPOSITO, AS EXECUTRIX DECEASED, LORETTA INDEX NO. 190163/2019 . [OF NICHOLAS J. ESPOSITO, JR, MOTION DATE l: MOTION SEQ. NO. I 'ESPOSITO, Plaintiff, NIA --- - -003 ' ~BB, INC.,AIR & LIQUID S~:;EMS CORPORATION f'RMSTRONG INTERNATIONAL, INC.,AURORA PUMP ' 'COMPANY, BEAZER EAST INC.,BELDEN WIRE & CABLE '·coMPANY, LLC,BW/IP, INC.,CBS CORPORATION, pLARK-RELIANCE CORPORATION, CLEAVER-BROOKS !NC.,CONVAL, INC.,COPES-VULCA N INC.,CRANE CO , INDIVIDUALLY AND AS SUCCESSOR TO AND DOING BUSINESS AS, CRANE ENVIRONMENTAL, INC.,CRANE PUMPS & SYSTEMS, INC.,CROSBY VALVE, LLC,EATON CORPORATION, ELLIOTT COMPANY, ERICSSON iNC.,FLOWSERVE CORPORATION, FLOWSERVE US, : iNC.,FMC CORPORATION, GARDNER DENVER, 1 iNC.,GENERAL CABLE CORPORATION, GENERAL ELECTRIC COMPANY, GEROSA, INCORPORATED, !3OULD ELECTRONICS, INC.,GOULDS PUMPS, LLC,GRAYBAR ELECTRIC COMPANY INC.,GRINNELL 1 lLC,ITT LLC,INDIVIDUALL Y, DOING BUSINESS AS AND SUCCESSOR TO ITT CORPORATION, BELL & GOSSETT COMPANY AND/OR BELL & GOSSETT DIVISION, FLOJET CORPORATION, THE HOFFMAN SPECIALTY MANUFACTURING COMPANY, ITT FLUID PRODUCTS CORPORATION, J.R CLARKSON COMPANY, THE, lLC,JENKINS BROS., MINE SAFETY APPLIANCES COMPANY, LLC,MUNACO SEALING SOLUTIONS, INC.,NASH ENGINEERING COMPANY, THE, OKONITE COMPANY, INC.,THE, OLYMPIC GLOVE AND SAFETY CO., INC.,RSCC WIRE & CABLE LLC,SCHNEIDER 1 ELECTRIC USA, INC.,SIEMENS INDUSTRY, INC.,SPIRAX ~ARCO, INC.,TRANE US, INC.,FORMERL Y KNOWN AS AMERICAN STANDARD, INC.,INDIVIDUALLY , AS SUCCESSOR TO AND DOING BUSINESS AS, TREADWELL CORPORATION, TRIANGLE PWC, /NC.,UNION CARBIDE CORPORATION, VELAN VALVE 90RP., VIKING PUMP INC.,WARREN PUMPS u:.c,WEILMCLAIN, WEIR VALVES & CONTROLS USA, INC, · WILLIAM POWELL COMPANY, THE, YUBA HEAT TRANSFER LLC,ZY-TECH GLOBAL INDUSTRIES, iNC.,JOHN DOE 1 THROUGH JOHN DOE 75, CUMMINS (NC.,INDIVIDUALL Y, AS SUCCESSOR TO AND DOING I DECISION + ORDER ON MOTION--·· ,I I I I 190163/2019 ESPOSITO, JR., NICHOLAS J. vs. ABB, INC. Motion No. 003 1 of 4 Page 1 of 4 [* 2] INDEX NO. 190163/2019 NYSCEF DOC. NO. 358 RECEIVED NYSCEF: 12/21/2021 '' 11· BUSINESS AS CUMMINS ENGINE COMPANY AND ONAN CORPORATION, I Defendant. I l-1--------------------------------------------------------------- --------------X fT:he following e-filed documents, listed by NYSCEF document number (Motion 003) 326, 327, 328, 329, 1130, 331,332,333,334,335,336,3 37,339,341,343,344,345,34 6 ,were read on this motion to/for I; REARGUMENT/RECONSIDERATION. Upon the foregoing documents, it is ordered that plaintiff's motion to reargue is granted. I HI ere, plaintiff seeks to reargue a prior motion seeking a joint trial with Pontieri v ABB, Inc., 1 . I J90351/17. Defendants The Nash Engineering Co., Weir Valves & Controls USA, Inc. d/b/a Al:wood & Morrill Co., Inc., and Aurora Pump Co. oppoSe and plaintiff replied. In a prior decision dated March I 8, 2021 (hereinafter referred to as the "Prior Decision"), i. ~~e Court denied plaintiff's motion for joinder on the grounds that the plaintiffs from the two AJses did not share a common worksite. CPLR 2221 (d)(2) permits a party to move for leave to Il . ... . its hen.d ed t he Iaw .m ren dermg . . t hat the court m1sappre . . upon as howing m1t1a I reargue a dec1s1on l d4cision. "A motion for leave to reargue pursuant to CPLR 2221 is addressed to the sound I l; discretion of the court and may be granted only upon a showing that the court overlooked or iiisapprehended the facts or the law or for some reason mistakenly arrived at its earlier Il . st dJcision." William P. Pahl Equip. Corp. v Kassis, 182 AD2d 22, 27 (I Dep't 1992), appeal I: ddnied in part, dismissed in part 80 NY2d I 005 ( 1992) (internal quotations omitted). 'l I I: Plaintiff argues that this Court misapprehended the law and the facts, as six of the seven : 11 · nd factors set forth in Malcolm v National Gypsum Co., 995 F2d .346 (2 Cir. 1993), were met. In I I 1~position, defendants herein aver that the Court did not misaJ)prehend the law or facts in the P. Jior Decision, and further argue that plaintiff is merely attempting to get a second bite at the 1f I I 2 11,90163/2019 ESPOSITO, JR., NICHOLAS J. vs. ABB, INC. UntinnNn M~ of 4 Page 2of4 [* 3] I! INDEX NO. 190163/2019 ' NYSCEF DOC. II 'NO. 358 RECEIVED NYSCEF: 12/21/2021 Il j; · Ir , 1 · ·rr 1 ~pp e asp amt1 s arguments here. were made in the prior motion. Preliminarily, the Court notes 11 f~at such argument fails as the instant motion is one to reargue rather than renew such that the ~ourt will reconsider arguments and law plaintiff made during the prior motion that the Court hen ded or overlooked. . It have m1sappre may I; I As to joinder, the Case Management Order dated June 20, 2017 (hereinafter referred to as . I re "CMO") states that "[t]wo cases may be joined for trial where plaintiff demonstrates that jJinder is warranted under Malcolm v National Gypsum Co. (995 F2d 346), and New York State lJses interpreting Malcolm. Malcolm and its progeny list factors to measure whether cases 1~ould be joined; it is not necessary under Malcolm that all such factors be present to warrant I: joinder." CMO, §XXV. B. The factors to be considered under Malcolm are "(I) common .. ihrksites; (2) similar occupation; (3) similar time of exposur~; (4) type of disease; (5) whether Ji'aintiffs were living or deceased; (6) status of discovery in each case; (7) whether all plaintiffs !' ' Malcolm, 955 F2d at 350were represented by the same counsel; and (8) type of cancer alleged". , 1 I ~~1. The United States Court of Appeals, 2nd Circuit, further ~oted that "[c]onsolidation ohort I ' sharing common questions of law and fact is commonplace. This is true of asbestosactions ' )eLted personal injury cases as well." Malcolm, id. at 350(internal quotations and citations I: . om1tted) . I I: Plaintiff correctly argues that the Court misapprehend~d the law and the facts in the Prior . j: finds that both plaintiffs, Mr. Court the factors, Malcolm the all reviewing Decision. Here, Jlposito and Mr. Pontieri, had similar occupations in that both worked several jobs and became I• ~~chanics, both plaintiffs were exposed to asbestos between 10 and 20 years, both plaintiffs ' I; I' d4veloped lung cancer from which they both passed away, the discovery in both of these actions Jre complete, and both plaintiffs have the same counsel and opposing defendants in the instant . I' I, I 1:90163/2019 ESPOSITO, JR., NICHOLAS J. vs. ABB, INC. Motion No. 003 3 of 4 Page 3 of 4 [* 4] II INDEX NO. 190163/2019 l. I. NYSCEF DOC. NO. 358 RECEIVED NYSCEF: 12/21/2021 I altion represent defendants Gerosa Inc., Treadwell Corp., and Weir Valves & Controls USA, I• . Inc. d/b/a Atwood & Morrill Co., Inc. in the Pontieri action. Thus, seven of the eight Malcolm Uctors have been satisfied. It is clear that there are common issues of law and fact. The CMO hplicitly states that the Court may order joinder of cases based upon the Malcolm factors and ;; that not all such factors must be present. The Court's Prior Order overlooked all seven of these 11 Malcolm factors in favor of one. Here, an overwhelming amount of factors support joinder of the I' I. tJo actions. Although the two plaintiffs did not share common worksites, this does not preclude 'I I: . joinder of the cases for trial. Adequate safeguards can be put in place during the trial to avoid I I 11 j~'ror confusion. Thus, plaintiffs motion to reargue is granted and the original motion seeking a j~ljnt trial of the instant action with Pontieri v ABB, Inc., 1903,51/17 is granted. i. :, I, I'. . Accordingly, it is ORDERED that plaintiffs motion to reargue is granted and, upon reargument, the Court Jacates its prior order, dated March 18, 2021; and it is further I I ORDERED that the instant action is joined with Pontieri v ABB, Inc., 190351/17 for trial; I ano it is further '. ORDERED that, within thirty days of entry, plaintiffs shall serve a copy of this order uWon all parties, together with notice of entry . • I '. I' This constitutes the Decision/Order of the Court . . I I! 12/14/2021 Il I!I! DATE ADAM SILVERA, J.S.C. CASE DISPOSED CHECK ONE: APPLICATION: 1l CHECK IF APPROPRIATE: It , X GRANTED • X DENIED GRANTED IN PART SETTLE ORDER SUBMIT ORDER INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT I1 19016312019 ESPOSITO, JR., NICHOLAS J. vs. ABB, INC. Motion No. 003 I NON•FINAL DISPOSITION 4 of 4 • • OTHER REFERENCE Page 4 of 4

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