Theophil v A.O. Smith Water Prods. Co.

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Theophil v A.O. Smith Water Prods. Co. 2022 NY Slip Op 33037(U) August 31, 2022 Supreme Court, New York County Docket Number: Index No. 190463/2018 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. INDEX NO. 190463/2018 FILED: NEW YORK COUNTY CLERK 09/08/2022 01:00 PM NYSCEF DOC. NO. 494 RECEIVED NYSCEF: 09/08/2022 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: 13 PART HON. ADAM SILVERA Justice -----------------------X WILLIAM G THEOPHIL, Plaintiff, INDEX NO. 190463/2018 MOTION DATE NIA MOTION SEQ. NO. 007 - V - A.O. SMITH WATER PRODUCTS CO, AIR & LIQUID SYSTEMS CORPORATION, AMCHEM PRODUCTS, INC.,AMERICAN BILTRITE INC, ARCONIC, INC, ARMSTRONG INTERNATIONAL, INC, ATWOOD & MORRILL COMPANY, AURORA PUMP COMPANY, BEAZER EAST, INC.,BLACKMER, BMCE INC.,BURNHAM, LLC,BW/IP, INC. AND ITS WHOLLY OWNED SUBSIDIARIES, CARRIER CORPORATION, CBS CORPORATION, F/K/A VIACOM INC ,CERTAINTEED CORPORATION, CLEAVER BROOKS COMPANY, INC, CL YOE UNION, INC, CONSOLIDATED EDISON COMPANY, COURTER & COMPANY INCORPORATED, CRANE CO., CRANE CO. INDIVIDUALLY AND AS SUCCESSOR TO PACIFIC VALVES, CROLL REYNOLDS ENGINEERING CO., INC, CROSBY VALVE LLC,CROWN BOILER CO., CUPPLES PRODUCTS CORPORATION, DANA COMPANIES, LLC,DOMCO PRODUCTS TEXAS, INC.,ELECTROLUX HOME PRODUCTS, INC.,FLOWSERVE US, INC.,FMC CORPORATION, FORT KENT HOLDINGS, INC.,FOSTER WHEELER, L.L.C., GENERAL ELECTRIC COMPANY, GOODYEAR CANADA, INC.,GOULOS PUMPS LLC,GRINNELL LLC,H.H. ROBERTSON COMPANY, HAGON, INC.,IMO INDUSTRIES, INC, ITT LLC., KEELER-DORR-OLIVER BOILER COMPANY, KOHLER CO, LENNOX INDUSTRIES, INC, MARIO & DIBONO PLASTERING CO., INC, MILTON ROY COMPANY, MORSE DIESEL, INC.,NORTHROP GRUMMAN CORP. AS SUCCESSOR, O'CONNOR CONSTRUCTORS, INC.,OWENS-ILLINOIS, INC, PEERLESS INDUSTRIES, INC, PFIZER, INC. (PFIZER), RESEARCH-COTTRELL INCORPORATED, RILEY POWER INC, SEQUOIA VENTURES, INC.,SLANT/FIN CORPORATION, SPIRAX SARCO, INC.,SUPERIOR BOILER WORKS, INC, THE GOODYEAR TIRE AND RUBBER COMPANY, TISHMAN LIQUIDATING CORP., TISHMAN REALTY & CONSTRUCTION CO., INC, TREADWELL CORPORATION, TURNER CONSTRUCTION COMPANY, U.S. RUBBER COMPANY (UNIROYAL), UNION CARBIDE CORPORATION, UNITED CONVEYOR CORPORATION, VIKING PUMP, INC.,WARREN PUMPS, LLC,WEIL-MCLAIN, A DIVISION OF THE MARLEY- 190463/2018 THEOPHIL, WILLIAM G vs. A.O. SMITH WATER PRODUCTS CO Motion No. 007 [* 1] 1 of 4 DECISION+ ORDER ON MOTION Page 1 of 4 INDEX NO. 190463/2018 FILED: NEW YORK COUNTY CLERK 09/08/2022 01:00 PM NYSCEF DOC. NO. 494 RECEIVED NYSCEF: 09/08/2022 WYLAIN COMPANY, YUBA HEAT TRANSFER LLC,PORT AUTHORITY OF NEW YORK AND NEW JERSEY, Defendant. ------------------------X The following e-filed documents, listed by NYSCEF document number (Motion 007) 468, 469, 470, 471, 472,473,474,475,476,479,480,481,482,483,484,485,486 were read on this motion to/for QUASH SUBPOENA, FIX CONDITIONS Upon the foregoing documents, and after oral arguments, it is ordered that settled non-party Crane Co.' s n/k/a Redco Corporation (hereinafter "Redco Corporation") order to show cause is decided herein. Redco Corporation moves pursuant to CPLR § 2304 and CPLR § 3103, for an Order granting its Motion to Quash Defendant Mario & DiBono Plastering Co., Inc.'s (hereinafter "Mario & DiBono) Trial Subpoena Ad Testificandum and for a protective order. In support of its Motion, Redco Corporation argues that (1) it is a non-resident corporation and has no corporate representative or person most knowledgeable within the State of New York; (2) requiring resolved parties to appear at trial and provide live testimony would negatively impact the resolution of claims and be contrary to this Court's governing Case Management Order ("CMO"); (3) the Trial Subpoena directed at Redco Corporation does not comport with the New York City Asbestos Litigation's (''NYCAL") CMO; and (4) Mario & DiBono made no effort to reach an agreement with plaintiffs counsel and the Court regarding a less burdensome means of securing evidence to meet its Article 16 burden with respect to Redco Corporation. In opposition, Defendant Mario .& DiBono argues that none of Redco Corporation's arguments are persuasive, and the Motion to Quash should be denied in its entirety because the Trial Subpoena seeks relevant evidence to establish its equitable apportionment claim against Redco Corporation at trial. 190463/2018 THEOPHIL, WILLIAM G vs. A.O. SMITH WATER PRODUCTS CO Motion No. 007 [* 2] 2 of 4 Page 2of 4 FILED: NEW YORK COUNTY CLERK 09/08/2022 01:00 PM NYSCEF DOC. NO. 494 INDEX NO. 190463/2018 RECEIVED NYSCEF: 09/08/2022 Having reviewed the submissions of the parties, and hearing oral argument on August 2, 2022, this Court grants Redco Corporation's Motion to Quash. Forcing Redco Corporation, as a settled party, "to produce a witness at the trial of this matter is contrary to the policy fostering and encouraging settlements and to the NEW YORK CITY ASBESTOS LITIGATION (NYCAL) CASE MANAGEMENT ORDER (CMO)." Matter of Murphy-Clagett v A.O. Smith Water Products Co., Sup. Ct., NY County, March 7, 2018, Mendez, J., Index No. 190311/2015 (quashing subpoena directed to settled no:r:i-party). Indeed, the NYCAL CMO directly addresses the issue before the Court and provides Defendant Mario & DiBono with the appropriate relief. Section XIII of the CMO, entitled "Use at Trial of Nonparty Interrogatories and Depositions," allows the use of a resolved party's answers to NYCAL standard interrogatories to prove that its product contained asbestos or that asbestos was used in conjunction with that product, and/or any failure to warn by the non-party concerning any associated asbestos-containing product. See CMO §XIIl(A). It further states that "[n]onparty depositions may be used where allowed by the CPLR." CMO §XIII(B). Justice Moulton's decision accompanying the CMO details the reasoning for allowing the use of the aforementioned evidence at trial in asbestos matters and states that "limited Article 16 relief is warranted given the age of asbestos litigation and the difficulty defendants face iri proving that other nonparty entities should be considered by the jury as potential causes of a plaintiffs disease:" In re New York City Asbestos Litigation, Sup Ct, NY County, June 20, 2017, Moulton, J., Index No. 782000/2017. The mechanism devised by Justice Moulton and memorialized in the CMO "promotes judicial economy and efficiency, and provides a settling defendant finality." Murphy-Clagett, supra. As such, the Trial Subpoena Ad Testificandum served by Defendant Mario & DiBono on Redco Corporation is improper under the CMO and in contravention of long-standing public policy which encourages the resolution of lawsuits. 190463/201B THEOPHIL, WILLIAM G vs. A.O. SMITH WATER PRODUCTS CO Motion No. 007 [* 3] 3 of 4 Page 3of4 INDEX NO. 190463/2018 FILED: NEW YORK COUNTY CLERK 09/08/2022 01:00 PM NYSCEF DOC. NO. 494 RECEIVED NYSCEF: 09/08/2022 Accordingly, it is ORDERED that the Order to Show Cause by Crane Co., n/k/a Redco Corporation, seeking to Quash Defendant Mario & DiBono Plastering Co. Inc.'s Trial Subpoena Ad Testificandum and/or for a protective order, is granted to the extent of Quashing the Subpoena, and it is further ORDERED that Defendant Mario & DiBono Plastering Co. Inc. may use the interrogatories and deposition of settling party Crane Co., n/k/a Redco Corporation at trial in accordance with the CMO dated June 20, 2017. This constitutes the Decision/Order of the Court. 8/31/2022 DATE ADAM SILVERA, J.S.C. CASE DISPOSED CHECK ONE: X [* 4] GRANTED • NON-FINAL DISPOSITION DENIED GRANTED IN PART APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT 4 of PRODUCTS 4 190463/2018 THEOPHIL, WILLIAM G vs. A.O. SMITH WATER CO • • OTHER REFERENCE Page4 of 4

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